Cases by Issue - Judicial Administrationhttp://www.oyez.org/taxonomy/term/8373/podcast
U.S. Supreme Court Oral Arguments, presented by The Oyez Project (www.oyez.org)enJPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure Ltd. - Oral Argumenthttp://www.oyez.org/cases/2000-2009/2001/2001_01_651/argument
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Case:&nbsp;</div>
<a href="/cases/2000-2009/2001/2001_01_651">JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure Ltd.</a> </div>
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Transcript:&nbsp;</div>
<p>ORAL ARGUMENT OF SARAH L. REID ON BEHALF OF THE PETITIONER</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: We'll hear argument next in Number 01-651, JPMorgan Chase Bank v. Traffic Stream.</p>
<p>Ms. Reid.</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: Mr. Chief Justice and may it please the Court:</p>
<p>The alienage diversity statute provides that the Federal courts have original jurisdiction in civil actions between citizens of different States and citizens who are subjects of a foreign State where the matter in controversy exceeds $75,000.</p>
<p>The question presented today is whether respondent, Traffic Stream (BVI) Infrastructure Limited, a corporation incorporated under the laws of the British Virgin Islands, qualifies as a subject of the United Kingdom within the meaning of that statute.</p>
<p>Petitioner, JPMorgan Chase Bank, submits it clearly does.</p>
<p>It is well-settled that the term, citizens and subjects, applies to corporations and not just natural persons.</p>
<p>It is also not controversial that a subject is one who owes allegiance to and is under the protection of a foreign State.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Is this a question of Federal law?</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: In terms of looking to the matter of the subject?</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: In determining who is a citizen or subject of a foreign State, or whether a corporation in this instance is a citizen or subject?</p>
<p>Is that a Federal law question?</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: Yes, Your Honor, we would submit it is in the first instance, but in saying that we must then look at the nature of the relationship and look at the foreign State which is asserting the sovereignty, and certainly that is a matter that we should consider carefully.</p>
<p>In this case, the United Kingdom has clearly expressed its sovereignty over respondent and over the other residents and corporations of its overseas territories.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: When you say the United Kingdom has expressed its sovereignty, Ms. Reid, do you mean that you're looking at their statutes, or that their diplomatic representatives have made a representation?</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: Both, both the fact that they have intervened as an amicus in this and in other cases, but also, particularly in the case of respondent, if one looks at the BVI constitution enacted in 1976, it is enacted as a result of the act of parliament and the order of parliament, and it reserves expressly all power to the Crown ultimately, and it is only from the Crown that the law is then delegated to the elected legislative council.</p>
<p>Each member of whom must swear allegiance to the Crown and to the Queen.</p>
<p>The United Kingdom reserves the right to review, approve, and ultimately disapprove any statute that is enacted in the British Virgin Islands, which is a right that they do exercise.</p>
<p>In this case, therefore, the enabling or enacting statute which, under which respondent is incorporated, is a direct result of the authority granted from the Crown, so I would argue it is not just a matter of the diplomatic relationship and the fact that the United Kingdom is the external face for the British Virgin Islands in terms of matters of defense and international relations, but also the fact that all law is derived ultimately from the Crown.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Ms. Reid, every corporation must be formed under the law of some sovereign, and if that's right, a corporation just can't generate itself.</p>
<p>Is there any corporation that is formed under the law of some sovereign other than the United States not included within 1332, or is this just a very simple case where every foreign corporation of course is organized under the law of some State, and therefore would qualify.</p>
<p>Does your case involve anything more than that?</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: I would say, Your Honor, in 99 percent of the cases, that you're right.</p>
<p>I suppose it is conceivable that you would have corporations organized by someone who declares they are sovereign of some island somewhere, but no one recognizes them as a sovereign, and the United States would say, we know nothing of this person, and know they can't be--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Then the United States would also say that that's not a corporation.</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: --Right, exactly.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: So I think you could say in 100 percent of the cases if we acknowledge it as a corporation, it will have been formed under the law of some State.</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: I would agree, Your Honor.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: And I suppose even as to natural persons in this sort of eccentric island in the real world, if we did not recognize their claim to individual sovereignty or nationality, in the real world I assume they would be subject to some other national sovereign and they'd by that virtue, by virtue of that be swept up under the term, citizen or subject, wouldn't they?</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: I would agree.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Yes.</p>
<p>Let's assume... and I'm not sure that this is an actual proposition of international law, that a subject of a sovereign has a special duty to obey the laws of that sovereign.</p>
<p>A United States citizen in China has a special obligation to obey the laws of the United States that a British subject does not.</p>
<p>Does this corporation have a special obligation to obey the laws of Great Britain in any greater degree than it has the obligation to obey the laws of any other sovereign to whom it might become--</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: Yes, Your Honor.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: --subject?</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: An analogy, though, not completely perfect, but it... you know, JPMorgan Chase is a corporation organized under the laws of the State of New York.</p>
<p>It obviously has to follow the laws of the State of New York, but it also has obligations that it has to follow under our Federal law.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Yes.</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: Similarly, a corporation set up under the laws of applicable overseas territories in the first in stance, of course, must follow the laws of their legislative district, but they must also abide by agreed-upon laws and conventions of the United Kingdom, and that is specifically an issue in the Caribbean, where there are certain financial disclosure, which is mandated in part through the relationship, constitutional relationship between the United Kingdom--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Where can we document the proposition that you've just stated?</p>
<p>What do I look to?</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: --To a certain extent, the treaty, that... for example the Narcotics Enforcement Treaty.</p>
<p>There are also the United Kingdom... the one I'm thinking of is their recent overruling on the homosexuality, which we cited only to a newspaper article in our brief, will demonstrate that.</p>
<p>The best sites are the web sites for the BVI and for the United Kingdom, which detail the relationship between these two entities, also the white paper we cited to Your Honor written in, I believe, 1999, goes into great detail about the relationships between the overseas territories and the United Kingdom, what the authority and sovereignty the United Kingdom has--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: No more established authority like Blackstone, or--</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: --Not that we have cited to Your Honor, though in many ways there are parliamentary debates that you can access concerning... which are referenced in the white papers... concerning the relationships between the overseas territories and the Queen, which were quite reminiscent of the debates before the American Revolution in terms of virtual representation and--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: --If we were dealing with a private individual rather than a corporation, do you think there could be a stateless person who wouldn't fit under this statute?</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: --In very, very rare instances, and those instances are where the individual had either renounced their citizenship, which has on occasion occurred, or where they have been, you know, exiled, and have not yet acquired citizenship somewhere else, and we would submit that the cases cited by the Matimak Court deal with those kinds of statelessness.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Suppose that kind of person that Justice O'Connor and you just discussed, a true stateless person, is temporarily in a port of Australia, San Francisco, or Monterey, Mexico, can it be said consistently with the statute here in question that they are at least temporarily subject to the laws of Australia while they are there, because they're stateless and they have no other higher obligation, so they're then subject--</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: No.</p>
<p>I would submit that what subject to you must mean is that you have an allegiance to a sovereign, and the sovereign in turn has an obligation to you, including protection.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: --It's not subject to.</p>
<p>The phrase is subject of, isn't it?</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: Yes, of a--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Everybody living in a country is subject to the laws of that country, and presumably to the Government of that country, but they are not necessarily a subject of that country.</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: --That is true, Your Honor.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: So there can be stateless persons who are not within the clause.</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: Yes.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: And the reason you take that position, I take it, is that the impetus for the constitutional grant was in effect to keep countries from getting mad, rather than for purposes of extending jurisdiction as such to everyone who one might want to sue in a Federal court.</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: Right.</p>
<p>I mean, we have argued that there were two impetuses.</p>
<p>One is the prevention of foreign entanglements by providing a neutral Federal forum, and the other was the promotion of commerce.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: I must say, I didn't understand what you mean by foreign entanglements.</p>
<p>Are you talking about the foreign entanglements that George Washington warned us against?</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: The--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: I mean, like alliances with France, or things like that?</p>
<p>What--</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: --No.</p>
<p>The foreign entanglements, when one looks back at the Framers' discussion, seem to envision that if the British debt could not be collected we might find ourselves back in another war.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: --We don't want to make them mad.</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: We didn't want to make them mad.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Okay.</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: That, I think, was the entanglement that they were worried about.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: It's a strange term for it, then.</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: And just briefly on the issue of the promotion of commerce, I wanted to make the point that JPMorgan Chase Bank and the financial market, you know, considered the Matimak decisions as ones who have potentially very deleterious effects on international commerce.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Well, why?</p>
<p>Aren't New York courts... this is not a question of saying for our corporation you can't enter U.S. court.</p>
<p>They can enter a New York State court, and those courts are pretty savvy about commercial matters, are they not?</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: Absolutely, and I practice before them frequently, but the perception on the part of foreign... foreigners is that the Federal system is one in which procedures are uniform across the country, and a... with predictability, perhaps, that is more a matter of perception than of reality.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: I know Alabamans who are afraid of New York courts.</p>
<p>[Laughter]</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: And vice versa.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: But it is a little different from what it was in the days of the post revolution, when the British creditor said State courts are simply going to let them collect on their debts.</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: That's true.</p>
<p>In this particular case, the reason in large part that it was decided to go into Federal courts is simply because we wanted to get as speed a resolution as possible, and the State court system has interlocutory appeals, which is just the way the system works, and... but it does often lead to additional delay and we had noteholders who were insistent that we try and get our collateral back as soon as possible.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Anyway, you... I think no one has suggested a dynamic interpretation of 1332, so that if the original rationale is not as strong today as it was then, that somehow the meaning of 1332 would change.</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: No.</p>
<p>I think it's... the... clearly the United Kingdom at this point is, I guess one could say at best, annoyed by this continuing refusal to recognize their sovereignty over these types of entities, and the fact is that you know, they have submitted an amicus brief here, several other amicus briefs, two diplomatic notes, so that the fear of the Framers of having an entanglement of some sort with an ally is still, I think, valid today.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: No other circuit has followed the Second Circuit, have they?</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: No.</p>
<p>The Third Circuit has split explicitly.</p>
<p>The Fourth and the Seventh Circuit have also disagreed, though not... they didn't discuss Matimak, and one of them was earlier than Matimak, but no, there is no other circuit that has followed this rule.</p>
<p>If the--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: You wish to reserve the rest of your time?</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: --Yes, Mr. Chief Justice.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Thank you, Ms. Reid.</p>
<p>Mr. Minear, we'll hear from you.</p>
<p>ORAL ARGUMENT OF JEFFREY P. MINEAR--</p>
<p>ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE,--</p>
<p>SUPPORTING THE PETITIONER--</p>
<!-- jeffrey_p_minear--><p><b>Mr. Minear</b>: Thank you, Mr. Chief Justice, and may it please the Court:</p>
<p>The United States submits that corporations organized under the United Kingdom overseas territories are citizens or subjects of a foreign State for purposes of alienage diversity jurisdiction.</p>
<p>We reach that conclusion based on the plain language of 1332.</p>
<p>Section 1332's operative term, subject, describes a personal entity that is amenable to foreign authority in the sense that it owes allegiance to that foreign State and is entitled to the protection of that foreign State.</p>
<p>That term quite clearly embraces a corporation created by a foreign State.</p>
<p>This Court recognized that principle in Steamship Company v. Tugman 120 years ago.</p>
<p>The crucial issue in this case is whether the United Kingdom exercises sufficient sovereign authority over the British Virgin Islands such that citizens and corporations can be said to be subject to the United Kingdom's rules, and we think the answer to that is clearly yes.</p>
<p>The United States expressly recognizes the United Kingdom's sovereignty over the British Virgin Islands.</p>
<p>We do so through treaties such as the Consulate Convention that we have with the United Kingdom.</p>
<p>We also recognize it through our diplomatic relations with the United Kingdom.</p>
<p>Now, we fully support the United Kingdom's claim here of sovereignty over the British Virgin Islands.</p>
<p>In addition, if the Court needs to look further, and we think it does not, it's clear from the British Virgin Islands' constitution that the United Kingdom has retained its sovereignty over the British Virgin Islands.</p>
<p>That constitution expressly states that the United Kingdom reserves full power to exercise and pass laws for the good government, order, and peace of the British Virgin Islands.</p>
<p>We think the language of section 1332 conclusively resolves this case, but if the Court needs to look further still, then we think the policies that underlie section 1332 further buttress the conclusion that we reach.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: --Mr. Minear, what if the... say, the U.K. takes one position and makes a representation, but the State Department, our State Department disagrees.</p>
<!-- jeffrey_p_minear--><p><b>Mr. Minear</b>: The--</p>
<p>0 [Slide.]</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Then what sort of an action should our courts take?</p>
<!-- jeffrey_p_minear--><p><b>Mr. Minear</b>: We think that you should defer on the United States views on these matters.</p>
<p>As far as disagreements between the United Kingdom and the United States, that's a matter for the State Department to deal with, but this Court's own decisions, cases such as Jones v. The United States, which is at 137 U.S. 202, explicitly state that questions of sovereignty are political questions that are entrusted to the political branches.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Well then, if you were to submit the views of the State Department in a case like that, no matter what else there is in the record, we should accept the views of the State Department?</p>
<!-- jeffrey_p_minear--><p><b>Mr. Minear</b>: Your cases suggest that that is the result that would follow.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Yes, but do you have a position--</p>
<!-- jeffrey_p_minear--><p><b>Mr. Minear</b>: Yes, we do.</p>
<p>To answer pointedly, yes, we do believe that you should defer to the United States views, because oftentimes on the question... let me distinguish here that the question of subject is, of course, the meaning of that term is a legal question that this Court would interpret according to its normal practices, but the question of whether a foreign entity is a foreign State is a question that is properly entrusted to the political branches.</p>
<p>We believe that the Second Circuit's decision stands alone here because it is quite plainly wrong.</p>
<p>The Third Circuit has expressly rejected it, and the Fourth Circuit and the Seventh Circuit have not followed it.</p>
<p>Under these circumstances, we think it is appropriate for the Court to reverse the decision below and remand the case for further proceedings.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: --Can you comment on the stateless person problem, not a legal person?</p>
<!-- jeffrey_p_minear--><p><b>Mr. Minear</b>: But an individual.</p>
<p>Yes, we can conceive that there can be such a thing as a stateless person, and we cannot believe that section 1332 by its plain language would reach a person who is not a citizen or a subject of a foreign State.</p>
<p>Pure alienage is not sufficient.</p>
<p>Nevertheless, the class of stateless persons is vanishingly small, and as was pointed out in the earlier discussion, the idea of a stateless corporation is an oxymoron, as Judge Altimari had stated.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: But there are some U.S. citizens who don't have access to the Federal court because they're not a citizen of any State.</p>
<p>Let's take a U.S. citizen who is residing in Switzerland.</p>
<!-- jeffrey_p_minear--><p><b>Mr. Minear</b>: That is correct.</p>
<p>That is correct, and again, we think the courts have consistently answered these questions by adherence to the plain language of the jurisdictional provisions.</p>
<p>For instance, for many years, until Congress dealt with the issue, citizens of the District of Columbia were not entitled to ordinary diversity jurisdiction, but these are matters that we think are best resolved by looking closely at the language that Congress has provided in the jurisdictional provisions.</p>
<p>If there are no further questions, thank you.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Thank you, Mr. Minear.</p>
<p>Mr. Albert, we'll hear from you.</p>
<p>ORAL ARGUMENT OF CRAIG J. ALBERT ON BEHALF OF THE RESPONDENT</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>There are two statutes at issue here, both of which have plain language.</p>
<p>Section 1332 of title 28 says that diversity jurisdiction extends only to citizens or citizens and subjects, and it does not extend to all aliens.</p>
<p>The British Nationality Act of 1981 defines those persons whom the United Kingdom of Great Britain and Northern Ireland views as its citizens or subjects, and natural persons who are living within the British Dependent Territories do not fall within the category of being British Citizens.</p>
<p>There is a special class, a subclass that is delegated to those people.</p>
<p>They are British Dependent Territory citizens, or British Overseas Territories citizens, and this is an important distinction, because they do not have the full measure of rights that any English citizen would have.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: You're now relying on English law, I take it.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: I'm referring to English law, yes.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Yes.</p>
<p>I think that creates some difficulty for United States courts, particularly when the U.K. is making representations here as to one point, then you tell us we have to read English law, which we're much less familiar with, of course, than American law.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: Yes, Mr. Chief Justice.</p>
<p>Under Rule 44.1 of the Federal Rules of Civil Procedure, a court can look to any source for finding where--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: I realize that.</p>
<p>It's not that we're somehow disqualified from it, but it makes it a much more difficult inquiry.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --It would be a much more difficult inquiry had the United Kingdom actually cited to any statute or any case ever decided in any English court anywhere on the subject, but it is--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Well, Mr. Albert, even if the British Nationality can be read as saying that corporations formed in the British Virgin Islands are not citizens, it doesn't say they're not subjects of the United Kingdom, does it?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --Well, actually, the British Nationality Act carves out classes of citizens, and classes of subjects, and persons who are neither citizens nor subjects, so in fact it--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: I just didn't find anything that indicated to me that a corporation formed in the British Virgin Island was not a subject of the U.K., and we are dealing here with a brief filed by the U.K. that says they are subjects, so what do we--</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --Well, I think that the question here is whether the deference should be unyielding to a litigation and advocacy position which the British Government puts forth in its briefs versus the substantive basis for that position which one would find in a statute.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: --Just looking at it from an American, U.S. perspective under the statute, citizens are subjects, and the fact that it is a corporation formed in the British Virgin Islands would lead me to conclude that is a subject of a foreign nation under our own statute.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: Respectfully, Justice O'Connor, I think that the conclusion ought to be different, because there is nothing with... the first step in the inquiry is, what would 1332(a)(2) have to say about corporations, and we know that 1332(a)(2) is a reference to citizens or subjects which is consistently... which before the Letson fiction was adopted had resulted in severe conflict over whether there was jurisdiction for corporations at all.</p>
<p>What this Court did in Letson was adopted the fiction not that the corporations were citizens or subjects, but that the corporations would be deemed to be citizens or subjects by virtue of the imputed citizenship of its shareholders and, applying the same principle here, you would impute the citizenship of the... the citizenship of natural persons resident within the British Virgin Islands to a British Virgin Islands--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: That's going back to a law that has long since become obsolete.</p>
<p>A corporation within the United States is a citizen of the State in which it's incorporated and where it has its principal place of business.</p>
<p>We don't look to the citizenship of the shareholders any more.</p>
<p>Why should there be such a tremendous disparity between our modern view of what a U.S. corporation is and the rest of the world when we don't even really think of the corporation as an entity in itself but say it's stuck by what its shareholder citizenship is.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --Respectfully, Justice Ginsburg, 1332(c) does not say that corporations are citizens of their States.</p>
<p>It says that for purposes of diversity they are deemed to be citizens of these States.</p>
<p>It is a counting rule, not a citizenship rule, and hence, the Letson fiction still obtains.</p>
<p>All that Congress did when it adopted the 1332(c) language was to restrict the scope of diversity jurisdiction by providing a second political jurisdiction, principal place of business, which would further limit the number of diversity cases which were appearing in Federal courts.</p>
<p>This Court has never held that corporations were political citizens or political subjects.</p>
<p>Only 1332(c) deems them to be so, and taking that a step further, it is Congress' choice, because Congress' language in 1332(a)(2) is that only citizens or subjects... it does not use the word aliens or anything broader... are subject to diversity jurisdiction.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Are you saying those words cover only human individuals and not corporations?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: For 1332(a)(2), humans, then applying the 1332(c) presumption, that would bring corporations within the scope of diversity jurisdiction.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Well, 1332(a) does use the term, aliens at the very end.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: Yes, there is a reference to it, but not in the provision of 1332(a)(2) on the extension of that dispute between citizens of a State and citizens or subjects of a foreign State, and in fact, Mr. Chief Justice, Congress in fact had used the word, aliens, the broader word, in the original enactment, in the Judiciary Act of 1789, but Congress abandoned that language when it revised the statute in 1875.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Is a Spanish corporation... as I say... is that... does that come within 1332 jurisdiction, a corporation formed in Scotland?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: In Scotland, yes, because a... because the Scottish people, the English and Welsh people, and the people of Northern Ireland all are citizens of the Metropolitan United Kingdom, the United Kingdom of Great Britain and Northern Ireland.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Well, my problem is if... take some... the British Virgin Islands, a place that's still held in something like colonial status, that you say that Scotland, which has a great deal more independence, belongs to the U.K. in the sense that it is a subject of the U.K., but the British Virgin Islands, or the Cayman Islands, that have less independence, are not subjects?</p>
<p>That may be something a lawyer could understand, but I don't think it makes much sense, does it?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: I think that the distinction is, no one is disputing here that the British Virgin Islands is subordinate to the United Kingdom, no one is disputing that its people ultimately are answerable to the authority of the United Kingdom, but that simply goes--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Does it make them subject... subjects?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --Subject to, not subject of, and that is why the British Nationality Act is so important here.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: If it's so important, I guess then maybe corporations incorporated in Scotland are not citizens and subjects either, because it doesn't say anything about corporations, does it?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: No, Justice Breyer.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Wouldn't people then be surprised if it doesn't say anything, if we said that Scottish corporations weren't citizens, or... in fact, wouldn't the people who live in these islands be a little surprised if the Supreme Court were to say, you're not nationals?</p>
<p>How does it work?</p>
<p>This is not an act that refers to corporations.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: The proper allegation in a case like this would be that a corporation is incorporated under the laws of Scotland and is therefore a citizen or a subject of the United Kingdom.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: And the reason that they are but these people aren't is?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: Is because England, Wales, Scotland, and Northern Ireland, along with the Channel Islands, are the constituent parts of the Metropolitan United Kingdom.</p>
<p>That is the Government with whom we maintain a direct relationship, and when we treaty with them, we... our treaties are binding as to that nation and those persons who are within those political subdivisions.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: As of English law, the reason that... although their law says, I guess, the counselor law, the diplomatic manual, the thing that says you have to swear allegiance if you're in the British foreign... you know, you're in the British Virgin Islands, all the laws are subject to British authority and so forth, so the reason, in your opinion, despite all those things they list in their brief, that makes it very, very similar, the reason that a corporation incorporated in Wales is a citizen of the United Kingdom or subject of the United Kingdom but these are not, because it's the British Virgin Islands, is?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: Because when parliament enacts a law of general applicability within the United Kingdom, its applicability is to those four jurisdictions that I've mentioned, England, Wales, Scotland, and Northern Ireland, along with in some instances the Channel Islands, but it does not, of its force, extend to the British Overseas Territories, the British dependent... what's now known as the British Overseas Territories.</p>
<p>They are regulated separately.</p>
<p>When we enter into a treaty with the United Kingdom on any subject whatsoever, unless our treaty specifically extends to those territories, what happens in those territories is unaffected by our treaty, so it is not a two-way street of reciprocal obligations within the United Kingdom.</p>
<p>All of their powers of these jurisdictions are derived from the United Kingdom, but they don't have any reciprocal rights, and that is especially true of the natural people who live within these territories.</p>
<p>The natural people who live within these territories have no right of abode within the... have no right of abode within the Metropolitan United Kingdom.</p>
<p>If you call them citizens or subjects, and in fact the United Kingdom uses both terms now, it no longer adheres to the old concept of subjects, they cannot travel to the United Kingdom--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Are they stateless people?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --They are not stateless people at all.</p>
<p>They do have a State.</p>
<p>Their State, their overarching State is the United Kingdom, which extends to them defense protection.</p>
<p>The United Kingdom protects them in an international sense, but they do have... and in that sense they a State.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: They are British... their State is the U.K.?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: They are just... they are very similar to what our territorial residents would have been before we extended citizenship.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: They are subject of and to the United States, I assume, the residents in the U.S. Territories.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: Residents of U.S. Territories are now citizens by virtue of an amendment to the Immigration and--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: What were they before they were citizens?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --They were nationals and natives.</p>
<p>They had no status.</p>
<p>They were very much--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: They were not stateless, were they?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --No, they were not.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: And so why isn't a corporation organized in the British Virgin Islands or the Cayman Islands... why is that stateless?</p>
<p>There's only one State it can belong to, because these are not independent sovereigns.</p>
<p>The BVI is not an independent sovereign.</p>
<p>What State does that... you tell me that the individual would belong to the U.K. What does a corporation belong to?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: I do not advocate the position that the Matimak... the Matimak Court adopted that these corporations were stateless.</p>
<p>I do not think that that is essential to the determination below, and I think that it was a poor choice of words.</p>
<p>There is a State involved.</p>
<p>The United Kingdom granted to the British Virgin Islands the authority to adopt a Companies Act, just as United States territories have authority under statute of Congress to adopt their own incorporation laws.</p>
<p>That does not mean that the corporations that are incorporated within the British Virgin Islands are subjects of, rather than subject to--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: They belong to some State, and either they belong to the U.K., or they belong to something that isn't a sovereign, or they're stateless.</p>
<p>It's got to be one of those three, so which is it?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --They belong to the United Kingdom, but that does not answer the statutory question at issue here, because even if they belong to a kingdom, even if they belong to the United Kingdom, that does not make the citizens or subjects of the kingdom.</p>
<p>You can be an alien and subject... an alien to the United States, subject to the kingdom, yet not be a citizen or subject of the United Kingdom, and that was Congress' choice to make.</p>
<p>Congress--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Could I ask, the word subject in the statute just tracks the word subject in the Constitution, and I... wasn't the status of the colonists before our Revolution precisely the same as the status of the British Virgin Islands?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --Justice Scalia--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Which would lead me to the inquiry whether the... even the revolutionaries considered themselves subjects of the British Crown.</p>
<p>If they weren't, I guess they weren't engaging in a revolution really, were they?</p>
<p>[Laughter]</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --The laughter from the audience in fact focuses the point here, because that was the fundamental shift in the understanding of the colonists and their relationship to the British Government.</p>
<p>Before the Revolution, the old idea of subjectship was that it was permanent.</p>
<p>One could never abandon one's subjectship.</p>
<p>The political idea during the Revolution was a shift toward the idea of volitional allegiance.</p>
<p>That is, that once the Crown abdicated parts of its protective authority, then the people no longer were subjects of the Crown, and the legal basis for the legal philosophers during the formation... in the 1774 to 1776 period was to justify how it was that we could throw off our bonds to the British Crown, and the way in which they justified it was to say that the King had abdicated, and therefore, in the words of the Declaration of Independence, we were no longer his subjects.</p>
<p>What were we?</p>
<p>Well, there was a--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: But we had been.</p>
<p>We had been.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --Oh, we had been.</p>
<p>We had been.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: We occupied the same status in those days as the British--</p>
<p>--Why wasn't that status the one that's comparable to the status of citizens in the Virgin Islands here--</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: Justice--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: --because they're not claiming that they've been abandoned by the Crown here.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --Justice Stevens, there are two places in which that abandonment can come about.</p>
<p>One is by the people themselves declaring themselves independent, they saying that those bonds have been thrown off.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Of course, that hasn't happened here.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: It certainly has not happened here, but there is another way, because when nations adopt the idea of volitional allegiance, the new idea of what a subject is, then the nation itself can change its laws to determine what the status of its people are.</p>
<p>Here, the United Kingdom has changed the status of its persons.</p>
<p>The United Kingdom has moved away from that 18th and 16th, 17th century view of what a subject is and moved to our view of what a subject is, and the British Nationality Act explains exactly what these people are.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: The British Nationality Act has nothing to do with corporations.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: But the British Nationality Act does have to do with what the people in the British Virgin Islands are--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: And the other thing they--</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --and then applies--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: --I understand your point there, but... so I'm cutting you off, but they say that in these places the Queen appoints the Governor, the Governor is responsible for internal security, public service, and court administration, but all the laws they pass in these places are subject to review by the Foreign Office, the Commonwealth Office, and then the Queen in Council, which is a group of particular individuals, that the Legislative Council swears its allegiance to the Crown before it takes place, and so they haven't just discarded this place at all.</p>
<p>They've sort of treated it as we might treat a city inside a State, or some other kind of semi-independent entity, and you say to that, what?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --Or more particularly, as we would treat one of our territories, because the ability of Congress to legislate for its--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: You mean, people in our Territories like Puerto Rico, let's say, which is a Commonwealth--</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --Yes.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: --or Samoa, they are not subjects of the United States?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: They are not subjects of the United States.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: They don't owe their allegiance to the United States, and they're not subject to its laws.</p>
<p>Which is it?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: The position that has been advocated here, and I think that the... and that has been uniformly advanced by the scholars is that citizenship versus subjectship is simply... are simply two sides of the same coin determin... describing what the relationship is of one in either a democracy or a monarchy, and what has happened in the United Kingdom is that as the country has evolved from a strict monarchy to a constitutional monarchy with democratic principles, that the ideas of subjectship have evolved, and the idea of citizenship has been incorporated into their law.</p>
<p>This--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Do you feel some discomfort in saying, well, that's what the U.K. law is, and you told us that what the Companies Act means, when U.K. itself is telling this Court, you've got it all wrong?</p>
<p>You're standing before the Court as an interpreter of U.K. law.</p>
<p>You're riding the whole... your whole case on what U.K. law is, and yet the U.K. tells us, you read it wrong.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --I would have thought that had the United Kingdom had a statute on which it could rely, or any decision on which it could rely, it would cite them.</p>
<p>The only authority to which it cites in the record at all is in the lodging--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Which... go ahead.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --Is in the lodging at page L31, an excerpt from its diplomatic manual which describes the various categories under the British Nationality Act.</p>
<p>The other authority upon which it relies are its diplomatic notes in which it asserts that it views these people as its subjects, but if you look to each citation of that... those diplomatic notes, they come not in a submission to a court, asking a court to determine what British law is, but in a protest to the State Department after a case has been decided saying, we don't like the decision of this court.</p>
<p>Now, I've cited to the... I've certainly cited to the text of the British Nationality Act which tells you where the diplomatic... where the diplomatic manual derives its basis.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Is it a fair summary to say that it's a litigating position and therefore we do not owe it Chevron deference?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: I think it is a pure advocacy position, and it does not deserve--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Are you arguing for what we might call a variable definition of subject, that VI residents are subjects of Great Britain in some cases and not others?</p>
<p>That is to say, you said earlier that the U.K. could make a treaty binding on VI residents, VI citizens, so that you can be subject of Great Britain in some instances and not others.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --Justice Kennedy, the U.K. itself--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: If I characterize your argument that way, would that be a proper characterization of your argument?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --I think that at the second level of Matimak inquiry, when... that the Court would necessarily have to inquire as to whether or not a person is or is not a subject, and I think that I would be... I am willing to concede that Britain could change its statute for general purposes or for limited purposes so as to give to these territorial citizens the right to proceed in American courts, and we would defer to that simply by reason of... simply for reasons for international comity.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: But doesn't that potential indicate that there is sovereignty, because--</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: Once--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: --isn't sovereignty the capacity to exercise power and authority?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --Sovereignty is that power.</p>
<p>The question is whether or not they are subjects.</p>
<p>I'll give you an example.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: They are subjects because of the potential of the exercise of that power.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: The land that sits in the middle of London at Leicester Square, the famous Tolk v. Moxie Land, is subject to the sovereignty of the United Kingdom, but that does not make the land a subject, and so the mere fact that the United Kingdom adopts legislation which regulates behavior of its people, both within the metropolitan United Kingdom and within its territories, does not mean that the people within its territories are subjects for purposes of 1332, and I say that especially in light of the fact that as we stand here today the United Kingdom has adopted a new statute which has not yet come into force, because a statutory instrument has not yet been signed for it, which will render the British Territories' citizens to be British citizens, giving those British citizens now the right of abode within the United Kingdom, and that will happen in the future.</p>
<p>It probably will happen soon, maybe in a matter of months, maybe in a matter of years, but it has not happened yet, and we determine subject matter jurisdiction as of the time of the commencement of--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: How does that affect a corporation?</p>
<p>You're talking about what will be the status of individuals.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --I think that a... that applying... that the proper way to apply the Letson principle here is that a British Virgin Islands Corporation should never be subject to diversity jurisdiction precisely because the presumption is that its shareholders have opted for British Virgin Islands status rather than opted for British status.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: And that would be the case... it would be... the Congress would be immobile as well.</p>
<p>In order to make... if I follow your argument correctly, in order to make a BVI corporation subject to 1332 jurisdiction, there would have to be a constitutional amendment, because the Constitution uses the same words for a citizen or subject... citizen or subject.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: The Second Circuit did not reach the constitutional--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: That's what I'm putting to you, because the statute uses the same term, citizens or subjects.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --I do not think that there is a presumption in this Court that the use of the same language in Article 3 and in title 28 means that the statute has--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Well, tell me what subject means within Article 3 that it doesn't mean within 1332 and why a court should interpret it... interpret them differently.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --Because if you look to the Judiciary Act of 1789, which was adopted nearly contemporaneously, Congress used the broader language, alien, rather than the narrower language, citizen or subject, and--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: That's not... the Constitution says citizen or subject, doesn't it?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --That's correct, it does, and--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: What does it mean... what does subject mean within the Constitution, within Article 3, as it reads?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --It would be mere speculation on my part to suggest what it was that they meant, since this was one of the least debated provisions of the Constitution.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: But you're urging a certain statutory interpretation, and you said, well, maybe it has a different meaning, the word subject, in the Constitution, so I'm asking you to tell me what could be those different meanings.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: I think that it is entirely possible that in 1787 Congress... the Convention intended to extend the grant of authority to the full measure of diversity jurisdiction over cases involving all foreigners, but the reason that I don't think that they focused on the issue was because in 1787 there really were not these cases of... there were not a lot of cases, probably no cases in which there were people who lacked subjectship yet nevertheless were foreigners.</p>
<p>With respect to these trading colonies in particular, the people who were involved in the mercantile trade involving these Caribbean colonies were not people who were resident within those colonies--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: What about Canadians?</p>
<p>Until Canada domesticated its constitution, I suppose for most of the 19th Century Canadians were not subjects of the Crown?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --I think Canadians were subjects of the Crown by virtue of the fact that they were in a settler colony rather than in a plantation, a plantation colony, and the... one of the difficulties of the British law of that entire era is that it never really had a uni... it never had a uniform picture of who its persons were, and what the relationship was between the Crown and each one of the different types of colonies that were created, and it was very, very difficult for the... it was very difficult for Britain, because Britain had different types of colonies which promoted different types of British interests, and therefore it created different types of Governments within them, and created different statuses with respect to immigration and migration to Europe for those people.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: So among the subjects, or... well, the entities that are under U.K. sovereignty, which are those are subjects and which of them are not?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: The ones which are certainly not subjects right now are those which are the British Overseas Territories, which include the British Virgin Islands, the Cayman Islands, Bermuda, the Turks and Caicos--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Which ones are?</p>
<p>Which ones are?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --Pardon?</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Which ones are?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: The Isle of Man, the Channel Islands are British... are British citizens, and--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: I didn't ask citizen, I said, subjects.</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --Oh, British subjects, sorry.</p>
<p>British subjects, and--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: How about the Falklands?</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: --The Falklands... the Falklands, those residents are not British citizens.</p>
<p>They are British Overseas... Overseas Territories citizens.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: How about Leicester Square?</p>
<p>[Laughter]</p>
<!-- craig_j_albert--><p><b>Mr. Albert</b>: It has no status whatsoever, because it is property, not a person.</p>
<p>Thank you.</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: Thank you, Mr. Albert.</p>
<p>Ms. Reid, you have 6 minutes remaining.</p>
<p>REBUTTAL ARGUMENT OF SARAH L. REID ON BEHALF OF THE PETITIONER</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: Mr. Chief Justice, and may it please this Court:</p>
<p>I will try to be brief.</p>
<p>I would like to separate the inquiry between corporations and then address natural persons.</p>
<p>Corporations are incorporated through the laws of their legislative district.</p>
<p>The United Kingdom's brief details quite clearly how the corporations are incorporated, rather like our States, corporations in Northern Ireland are incorporated under the laws of Northern Ireland.</p>
<p>As I understand respondent's argument, that would make them stateless entities, because they are not actually incorporated in Scotland, Wales, or the United Kingdom.</p>
<p>Clearly, that is an absurd result, given the presence of the British--</p>
<!-- unidentified_justice--><p><b>Ms Reid</b>: I think his answer was that if they're formed under Scotland, Wales, Northern Ireland, they're okay, but if they're formed under BVI, they're not.</p>
<!-- sarah_l_reid--><p><b>Mr. Reid</b>: --Right.</p>
<p>I think he may have inadvertently been in error, because the Northern Ireland corporations are actually incorporated under a different law than those of the ones in England, but the point is the same.</p>
<p>All of these entities incorporate under their own individual quasi State or district law, all subject to the Crown, and they all should be analyzed in the identical way.</p>
<p>They are all subject to and subjects of the United Kingdom.</p>
<p>In terms of the natural citizens, I just wanted to point... the British Nationality Act, of course, has no applications to corporations, and the analysis that somehow we should adopt the old Letson rule is inapplicable both because it's United Kingdom law, we have no learning... I mean, United States law, no learning on what... how the United Kingdom would do it, but it seems sensible to adopt the more modern view, but the 1981 Nationality Act, interestingly, in schedule 5 to section 41, in terms of naturalization and becoming a citizen or a British Overseas Citizen, or a British, what was then known as Dependent Territory citizen, you're required to take the following oath of allegiance: I, name, swear by Almighty God that on becoming a British Dependent Territory citizen I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors, according to law.</p>
<p>I submit to you that that is the definition of a subject, and of allegiance, and that really is... demonstrates that the United Kingdom has come before this Court not as a litigation posture, because it has no interest really in any of these cases, but as a concern over the fact that its sovereignty is not being recognized by the judiciary when it has been recognized by the United States Government in numerous treaties, and again, I won't read them, but I would simply refer you to the Consular Convention and footnote 17 of the United Kingdom's brief, which details the numerous treaties that have been entered into governing the British Virgin Islands and other of the Overseas Territories.</p>
<p>If the Court has no further questions, I will submit.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Ms. Reid.</p>
<p>The case is submitted.</p>
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Attribution:&nbsp;</div>
The OYEZ Project </div>
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Featured:&nbsp;</div>
No </div>
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Fri, 09 Jan 2009 14:50:25 +000058866 at http://www.oyez.orgMurphy Brothers, Inc. v. Michetti Pipestringing, Inc. - Oral Argumenthttp://www.oyez.org/cases/1990-1999/1998/1998_97_1909/argument
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Case:&nbsp;</div>
<a href="/cases/1990-1999/1998/1998_97_1909">Murphy Brothers, Inc. v. Michetti Pipestringing, Inc.</a> </div>
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<div class="filefield-file"><img class="filefield-icon field-icon-audio-mpeg" alt="audio/mpeg icon" src="http://www.oyez.org/sites/default/modules/filefield/icons/audio-x-generic.png" /><a href="http://www.oyez.org/sites/default/files/audio/cases/1998/97-1909_19990301-argument.mp3" type="audio/mpeg; length=14555099">97-1909_19990301-argument.mp3</a></div> </div>
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Transcript:&nbsp;</div>
<p>Argument of Deborah A. Smith</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: We'll hear argument next in Number 97-1909, Murphy Brothers v. Michetti Pipe Stringing, Inc....</p>
<p>Ms. Smith.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Mr. Chief Justice, and may it please the Court:</p>
<p>The issue in this case is whether the 30-day time period for removal begins to run when a named defendant receives a copy of the complaint if service of process has not yet been perfected.</p>
<p>28 U.S.C. section 1446(b) requires that notice of removal be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading.</p>
<p>Relying upon the plain meaning of the words, receipt through service or otherwise, the Eleventh Circuit held that the removal period commences when a named party comes into possession of a copy of the complaint, even if service has not been made.</p>
<p>We submit to the Court that, when read as a whole and in conjunction with the other removal statutes, section 1446(b) is ambiguous.</p>
<p>The ambiguity arises from the use of the term, defendant.</p>
<p>A defendant can mean either a named party, a party who is named as the defendant in the complaint, or it can mean, in more proper sense, one who has been made a party defendant through service of process.</p>
<p>In section 1441(b), Congress used the term defendant in the narrower sense.</p>
<p>1441(b) states that parties in interest... or uses the phrase, parties in interest who have been properly joined and served as defendants.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: That's 1441(b)?</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Yes, sir.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: And in what part of... it's a short section, but I didn't immediately follow where you were getting the language from.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: In 1441(b), the second sentence states that any such action, any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Do you think that's a definition of defendant?</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: I think it is... I don't think it is... was intended as a definitional provision.</p>
<p>I think it is a demonstration that Congress was using the term there in a narrow sense, and suggests that perhaps Congress was using that term in a narrow sense in section 1446(b) as well.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I don't see why it's being used in a narrow sense.</p>
<p>It would have been used in a narrow sense if 1441(b) had just said, persons who are defendants, and the very word defendants would embrace the terms, have been properly joined and served.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Well, I...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: It didn't... Congress didn't think that the word defendant automatically embraced those terms, and therefore it said, who... people who have been joined and served as defendants.</p>
<p>I'm not sure that it helps your case more than hurts it.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Well, I think it... I disagree with you.</p>
<p>I think it does help, because I think it demonstrates that Congress felt a need to articulate in what sense it was using the term, defendant, in recognition that a defendant as... in common usage a defendant can mean, anybody who is named as a defendant in a complaint, and doesn't necessarily infer only a defendant who has been properly joined.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: But your argument has to be based on the proposition that Congress was using the term, defendant, in 1441(b) in the same way it was using it in 1446(b).</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Well, our argument is that it suggests, by the use of the term defendant in 1441(b), it suggests that Congress was using the narrow term defendant in 1446(b) as well.</p>
<p>I think it demonstrates the ambiguity in the term.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: But then why didn't... if you're right, why didn't the Congress use all the qualifying language from 1441(b) in 1446(b)?</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Well, in 1441(b) we're dealing with more than just parties who are named as defendants, because we're talking about parties in interest, and that could possibly be someone other than someone who has actually been named as a defendant in the complaint.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Even if I... I'm not sure I agree with you, I think for the same reason that Justice Scalia's question suggested, but assuming that I do agree with you for the sake of argument, I still have a serious problem with your position, and it's because of the usage of defendant in 1448.</p>
<p>1448 clearly contemplates that some individuals who are defendants in a case that has been removed may not yet have been served, and therefore, in 1448, it seems clearly to be using defendant in the sense of somebody who is simply called that in the pleadings, whether or not served, and that's the sticking point that I have.</p>
<p>How do you explain how I could accept your position for 1446, given the language of 1448?</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Well, I think you're correct.</p>
<p>I think in 1448 Congress was using the term in the broader sense, in recognition that there would be cases where a case had been removed and either the defendant who removed it had not been properly served, or where there were other defendants...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Or had not been served at all.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: who hadn't been served at all.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Or had not been served at all.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: I think it is a recognition that that can happen, but it just... it further demonstrates to me the ambiguity of the term defendant.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, assuming that is the case, doesn't it also demonstrate that in 1446 Congress could not have been using defendant in the narrow sense, i.e., that which... sense that requires service, as part of the meaning of the term?</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: I don't think so, because even if we assume that a defendant can only remove, that there couldn't be an early removal by a defendant who received a copy of the complaint, decided to go ahead and remove it even though his time had not begun to run under a service interpretation.</p>
<p>Aside... taking that instance aside, there are cases where a defendant's time begins to run because he has been served with process, and there are other defendants in the suit that haven't been served, so 1448 deals with those other defendants who have not been served.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: But it does use the word, the bare word defendant, and there's every indication in our Pullman case that we understand 1448 to apply to someone who is named as a defendant but not yet served, as it states on its face.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: I think 1448 does apply to someone who has been named but not served, but...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: How do you relate Federal Rule of Civil Procedure 81(c)?</p>
<p>That rule deals with removed actions, and when a defendant has to file his answer.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Your Honor, 81(c) is a... poses a real significant problem if the language, receipt through service or otherwise, means receipt without service.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: It uses the same language.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Yes, it does.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Receipt through service or otherwise of a copy, and says that in a removed action in which the defendant has not answered, the defendant has 20 days to file a response, basically.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Correct.</p>
<p>If... and that language was added to Rule 81(c) contemporaneously with the amendment of 1446(b) for the purpose of consistency, so it certainly should be interpreted to mean the same thing.</p>
<p>If it means only receipt in the absence of service, then it puts the defendant in the position of having to respond, not just remove the case without service but respond to the complaint without service.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: If you're right, Ms. Smith, that there is an ambiguity, then how do you interpret the meaning of the word, or otherwise, after the word, through service, in 1446(b)?</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: I believe that the idea that Congress was trying to set forth was that in a State where the complaint is served with the summons your time runs from receipt through service.</p>
<p>In other States, where you do not receive the complaint with the summons, then it runs from receipt by some other means.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: The situation that obtained in New York at that time?</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Correct.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: I'm...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: I had...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Let me ask just one... the second clause in 1446(b) seems to deal with that situation, that says it should then run from the date of service.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Well...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: And if that's true, there's nothing left for the other one.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Well, the second clause in 1446(b) was added to deal with a peculiarity in Kentucky where the complaint is filed in court, but it never has to be served on the defendant.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Right.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: So if they didn't put in a specific provision, the defendant's time in Kentucky would never begin to run, because he never would receive a copy of the complaint or it could, that situation could occur, and that is the purpose of adding that language to the second phrase.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Or otherwise took care of the New York-type States.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Correct.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But you needed the further one to deal with this Kentucky State...</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: The Kentucky situation, correct.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Now, how does New York and Kentucky... what's the difference between those two?</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: In New York, the defendant... the complaint was filed and the... and service of process was perfected without filing or serving a complaint...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: That's like...</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: but ultimately a complaint had to be filed and served.</p>
<p>The defendant ultimately did receive a copy of the complaint.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But wouldn't the second clause cover there rather than the first, even in New York, because if the... oh, you're saying the complaint need not be served for a long period of time but must ultimately be served, but it would have been filed at the time the suit was filed, wouldn't it?</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: No.</p>
<p>No.</p>
<p>In...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: You mean you can file suit without ever filing a complaint?</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: That's right.</p>
<p>You institute a suit by filing a summons, and I think the procedure has changed now, but at that time you instituted a suit by filing a summons and serving it on the defendant, without any requirement that the complaint be filed or served, so the difference is, in Kentucky a defendant could go to the courthouse and get a copy of the complaint.</p>
<p>In New York, the complaint wasn't necessarily there for the defendant to go get it.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: It wasn't even filed in the Clerk's Office?</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: It did not have to be filed in the Clerk's Office when the case was commenced, that's correct.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: In trying to give some meaning to or otherwise, which I find difficult to do, does it help to construe it as covering cases by publication?</p>
<p>You can either be served...</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Well, I think that the problems in interpreting the or otherwise language are much less significant if service of process has already been perfected, because then you don't have the same kinds of concerns about whether the defendant has actually gotten notice that there is a formal proceeding against him.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well, but I was wondering if the or otherwise covers that situation.</p>
<p>I'm trying to give some narrow meaning to or otherwise, other than just any other means other than service, and I'm having difficulty doing that.</p>
<p>I was wondering if...</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: I...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: if you can find it if you said that it was to take care of publication.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: I have not been able to come up with any narrow meaning of the phrase, or otherwise.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: There's not much disagreement, is there, that the or otherwise was inserted particularly to take care of the New York situation, where you start an action by filing... by serving the summons and unlike the Federal pattern, where they're served together, so they put receipt of the complaint or otherwise, not by process, but that you actually receive the complaint, and I think it's agreed that you have to actually receive the complaint to trigger, under anybody's interpretation.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: I believe that's correct.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: So...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Well, that's because of the word receipt.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Right.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Correct.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: I mean...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Can I ask a technical, minor thing, following up Justice Stevens?</p>
<p>Is this right?</p>
<p>My understanding was in the last clause they're talking about a case where the initial pleading, i.e. the complaint, has been filed in court and is not required to be served on the defendant.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: That's correct.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: That's Kentucky.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: That's correct.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: And in New York, those words do not apply, because in New York a complaint is required to be served on the defendant, but at a later time.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Correct.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Is that right?</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: That's correct.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: All right.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, you're... let me be sure I have your position correct.</p>
<p>A case is filed, and the... but the party... I see, but the party is not served, and you're mailing a copy of the complaint that's actually been filed.</p>
<p>You don't consider that otherwise, because there's no service yet.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: That... I believe that's correct.</p>
<p>I think that's a proper interpretation by reason of, who is a defendant.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But if there were service... I mean, I suppose the hypothetical case that this applies to is one where the service of the summons comes at a different time from service of the complaint, but I don't think there are any... they don't do that any place, do they?</p>
<p>If they require service of the complaint, it always accompanies the summons, doesn't it?</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: No.</p>
<p>It didn't in New York, and that was the very problem that they were addressing.</p>
<p>Now...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Because it didn't require any service.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: No.</p>
<p>The... a summons had to be served in New York.</p>
<p>A summons was served when the case was commenced, but it did not require that the complaint be attached to it.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: So...</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Nor did the complaint have to be filed in court.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: So the otherwise covers the New York practice of mailing the complaint or...</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Serving it...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: having a private processor delivering it.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Serving the complaint at some other time after service of process.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Well then, how... if we think that's the congressional intent, how do we then define otherwise?</p>
<p>What's the general definition of otherwise that is narrow enough to address just this circumstance?</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: I think or otherwise can mean any other... other way, and if service of process has been perfected to deal with the New York rule.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: What you're saying is, there must be a preliminary.</p>
<p>You must have...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: It must...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Your bottom line is, whatever else, you must have service of a summons, so if you have the complaint served together with the summons, that's fine, that's the Federal pattern.</p>
<p>Or if you receive the complaint apart from service of the summons, but after service of the summons, so I think your ground position is, you must have service.</p>
<p>The complaint can be served simultaneously, or it can be served later, but at a minimum, you must have service.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Right.</p>
<p>You must have service, and if you do have service, the problems with notice aren't there.</p>
<p>The defendant is on notice once service has been made.</p>
<p>He has been properly...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: It's very difficult to reconcile with the language of the statute, which doesn't say... it says receipt by service or otherwise, so to say that you must have service to get the thing rolling, it seems quite contrary to the language of the statute.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: I disagree, because I think defendant was intended to mean only a defendant who had been made a defendant through service of process.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Let me ask you a practical consequence of the Eleventh Circuit's formulation, which is different than what you urge.</p>
<p>If the defendant has not been served with a summons, but has received a copy of the complaint, and if we interpret the statute as requiring removal to be made within the requisite time from receipt of the complaint, does the defendant waive the right to assert lack of personal jurisdiction for failure to be served?</p>
<p>I guess no one disputes that.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: No.</p>
<p>No, I don't think that anybody has asserted that you waive personal jurisdiction.</p>
<p>The problem with Rule 81(c), though, is that our history and our Federal procedures and our understanding of the law is that a defendant doesn't have to do anything until he's been properly served with process.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: But at least you acknowledge that even if he is required to remove he can say, but I've never been served and I... he can reserve that, of course.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Well, he has to file a responsive pleading, and he may say in his responsive pleading, Rule 12(b), I haven't been properly served, yes.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: May I just make this additional observation?</p>
<p>It wouldn't necessarily have to be service.</p>
<p>I suppose the defendant could enter an appearance, and... without being served, and then the time would start to run if he got a copy of the complaint.</p>
<p>Say they mailed him a copy of the complaint and said, this was filed, we've sent the marshal off, we can't find you, the defendant could enter an appearance when... and then the copy would be enough.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Could waive service, in other words.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Yes.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Yes.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Yes, I think that's correct, but a... an interpretation that requires service and receipt I think is the most consistent with the legislative history and it also avoids the problems with Rule 81(c), and it also comports with fundamental fairness.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Well, maybe they should have written it that way.</p>
<p>I mean, to... you're saying, to achieve what they wanted to achieve, they should have written it differently.</p>
<p>But if, in fact, they didn't write it differently and went further than they should have gone, I don't know that we have the authority to cut it back.</p>
<p>You're giving this a very artificial definition of defendant.</p>
<p>Defendant means... I mean, there are a lot of conditions for being a proper defendant.</p>
<p>Surely service isn't one of them.</p>
<p>I mean, service isn't the only one.</p>
<p>I mean, you could be an improper defendant, improperly joined, right?</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: No... well, certainly you could be an improperly joined, misjoined...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: A misjoined defendant.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: defendant, but I don't...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: But you would still be a defendant.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: I... yes, absolutely.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: For your purposes.</p>
<p>Well, why pick out the one qualification that you have to have been served?</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Because that's what gives the court jurisdiction over you.</p>
<p>I mean, that is what, in our history, the... has told the defendant that he had to take action.</p>
<p>Before service of process was made, a defendant didn't have to do anything.</p>
<p>It didn't matter if he knew that that suit was sitting out there against him.</p>
<p>Until he had been served with process he didn't have to do anything, and I think Congress was acting with that understanding in amending in 1949.</p>
<p>They understood that a defendant doesn't have to do anything.</p>
<p>A defendant is truly a defendant only when he has been served with process.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, what if a defendant, several defendants have been named, diversity of citizenship alleged, and one defendant is, in fact, served, the others are not, and that defendant comes in and says, I want this dismissed because by the allegations of the complaint itself it shows there's no diversity here.</p>
<p>Now, aren't those other defendants defendants in any normal sense of the word?</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: They are defendants for determining diversity jurisdiction...</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: So...</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: whether diversity jurisdiction, because you have to look at everybody...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Yes.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: in the... named in the complaint.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, is that 100 percent true?</p>
<p>What if a motion to dismiss on jurisdictional grounds was made before the wrong defendants had been served?</p>
<p>Couldn't the plaintiff at that time say I've decided to dismiss those, never serve them, just say that I'll just abandon my claim against those?</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Well, I can't answer that.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Well, isn't... a plaintiff can always drop a party when all there has been is a complaint.</p>
<p>The com...</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Correct.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: You're not forced to sue anyone.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Correct.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: And that's the easy answer.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: So if... certainly if a lawsuit is filed in Federal court the... on diversity grounds, and they have named a nondiverse defendant, they can drop that defendant, correct.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But your point is the defendant who isn't served doesn't have to do anything.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Correct.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Doesn't have to answer the complaint, doesn't have to make a motion, can just sit back and until he's served with process he doesn't have to act affirmatively.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: That's correct.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Well, I mean, that's nice until they passed this statute.</p>
<p>What this statute says is, and once you have a copy of the complaint if you want to remove to Federal court, remove to Federal court.</p>
<p>I mean, the world won't stop if you set up that thing, it's true, that prior to this statute we had this different system, but what the statute says is that once you get the complaint, through service or otherwise, you have 30 days.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Well, I don't disagree that Congress could do that.</p>
<p>They could say that yes, you have to remove before you have been served with process.</p>
<p>I think the question, though, is that what they intended in 1949.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, it's a question, is that what they said in 1949.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Well, correct, but if we get past the ambiguity issue, then we do need to look at what they intended by their language.</p>
<p>And I think in 1949, when they amended this statute, all they were trying to do was correct a very narrow problem.</p>
<p>And in 1948, when the statutes were... Title 28 was reconfiled and revised in 1928... in 1948, excuse me, they specifically tied the removal time to State rules of service and commencement, so I think any suggestion that they were trying to divorce the removal statutes, or the removal procedure from the State rules of service is incorrect.</p>
<p>They specifically tied it to that in 1948.</p>
<p>In 1949, they were trying to only correct this very specific problem of a defendant who had been served, the suit had been commenced, but he didn't have any means of determining whether his suit was removable, and that is the problem that they were trying to correct.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Ms. Smith, may I ask you another question?</p>
<p>Do you think the word defendant is a term that is governed by Federal law or State law?</p>
<p>Supposing the State had a statute that said, a person becomes a defendant as soon as he... one State has a statute that says a person is a defendant when the complaint is filed.</p>
<p>Another State has a statute that says a person is not a defendant until he's served with process.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: I think it is an issue... for 1446 purposes and for removal purposes it is an issue of Federal law, who is a defendant under Federal law.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: So that even if a State had a statute that said, you are a defendant when the complaint is filed, that would not be controlling...</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: I think that's...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: and I suppose your opponent would make the same answer with respect to the other statute.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Well, I mean, what we have to look at is who is a defendant under 1446(b), and that has got to be an issue of Federal law.</p>
<p>Requiring both service and receipt is consistent with fundamental fairness.</p>
<p>It is... it voids a lot of difficult interpretive problems that result from solely a receipt rule.</p>
<p>The lower courts have begun superimposing the service-type ideas on top of the term receipt in order to deal with the concerns about whether the defendant has notice, the proper notice in order to put him on notice that he needs to do something in respond to the... in response to the complaint when he just receives it by fax or by mail without the formal procedures attendant to service of process.</p>
<p>We submit to you that that approach makes no sense, because if Congress did, indeed, intend receipt to mean any receipt, then superimposing service rules on top of what receipt is is contrary to congressional intent, so...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Is it clear under this statute that the complaint has to be filed in court, or can it just be something drafted in the lawyer's office?</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: I think that that is tied to the use of the term initial pleading.</p>
<p>And while I think that ordinarily an initial pleading would have to be filed in court, I don't know if there were some quirky States... I mean, what we were dealing with was quirky service and receipt rules, I hesitate to use that term, but in the State courts, and I do not know if there was some State where you did not have to file your initial pleading, but I think ordinarily the initial pleading would be a complaint that had been filed, already filed in State court.</p>
<p>If there are no further questions, I'll reserve my time.</p>
<p>Argument of J. David Pugh</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Ms. Smith.</p>
<p>Mr. Pugh, we'll hear from you.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Mr. Pugh, do you think the complaint has to be filed, in any event, under this statute?</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Justice O'Connor, yes, and I do agree that the requirement for filing the complaint is implicit in the terms and initial pleadings setting forth a removable cause of action.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: What if the complaint in this case had been obtained not by the intentional act of faxing it, but by a different means?</p>
<p>What if the lawyer for the defendant had simply been in the plaintiff's lawyer's office, had seen a copy of the complaint on the desk of his opposing counsel, and had just walked away with it.</p>
<p>Would the period of time start running then?</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Justice Souter, the position that the respondent would take would require more information.</p>
<p>For example, we agree that by initial pleading it would have to be a complaint that had been filed.</p>
<p>There would have to be some indicia on the complaint that that is in fact the case.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Okay.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: It's...</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: So there would need to be a file stamp.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Okay.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: I'll add that to my hypo.</p>
<p>It has been filed, but it has not been served and, in fact, without any invitation or authority defense counsel simply picked it up off plaintiff's counsel's desk and said, we'll have an early look, and walked away with it.</p>
<p>Would the period start running then?</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Again, Justice Souter, a few more facts...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Want some more...</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: might be necessary.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Okay.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: You complete my hypothetical for me, and then you can answer it.</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Well, the facts in the case before the Court are the ideal situation for one reason, primarily.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Well, I...</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: There's nothing... other than the means of conveyance.</p>
<p>Other than the means of conveyance, there is nothing left to be done in the facts before the case.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Okay, but how... let's get back to my hypothetical.</p>
<p>Picks it up off the desk...</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: It would need to be file-stamped.</p>
<p>We believe Rule 11 would require...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Why does it have to be file-stamped?</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: That's an indicia that the action is actually pending against the defendant.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: So in other words, what you're getting at is, there's got to be some affirmative indication on the plaintiff's part that the plaintiff is going ahead with this, that it's a real lawsuit, and not just some preliminary pleadings that may be... may or may not be used.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Yes.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, also some evidence of authenticity, isn't it?</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Yes, Mr. Chief Justice.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Are you sure...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, where does all this come from in the statute?</p>
<p>Why does it... the statute just says a copy.</p>
<p>Supposing that instead of mailing a file-stamped copy you had mailed a... just an office copy with a note on it, this is a copy of what we filed today, wouldn't that be receipt of a copy, or would it, in your view?</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: The extent to which courts may have to go in interpreting receipt does present some problems...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: My question is the word copy.</p>
<p>If you mail a verbatim copy of the paper you filed in there, but one that is not a photostat of the file-stamped copy, is that a copy within the meaning of the statute?</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: If, in fact, there is... if, in fact, the action is pending against the...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Yes, the copy... it is pending.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: And there is some indicia on the face of the complaint...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, the indicia is that one lawyer trusts another lawyer and he writes a letter to the lawyer saying, this is what I filed today.</p>
<p>That generally is acceptable among reputable counsel.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: A court could find that that is enough.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Okay.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: There is...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Now, my second question... let me just... please, may I finish with this one thought.</p>
<p>The usual situation that I was familiar with in practice is, before you file the complaint you will... as a courtesy you will sometimes fill out and mail a copy to the intended defendant saying, this is a copy of what I propose to file.</p>
<p>It's word for word what you do file 5 days later.</p>
<p>Then, has he received... and then 5 days later he becomes a defendant, the defendant.</p>
<p>Has the defendant received a copy within the meaning of the statute?</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: We do not think that on those facts, that the language in the statute would extend to those facts.</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: Okay, but in...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Why not?</p>
<p>Literally it does.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Why wouldn't it?</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: There's no action pending.</p>
<p>It's not an initial pleading.</p>
<p>He is not a defendant.</p>
<p>He might become one at some point.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Yes, but I'm talking about what he has in his possession after he becomes the defendant.</p>
<p>He has a copy of the complaint.</p>
<p>He has received a copy of the complaint, and he is a defendant, but you say the statute doesn't apply.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: The language of the statute...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: Wait, you say it would apply once it's filed.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: So we don't follow the plain language in all cases.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: I thought your position was, it would apply once it's filed, when he receives it.</p>
<p>5 days before the complaint is filed the statute is not complied with, but if he gets it 5 days before, and then later, Justice Stevens goes and files the complaint, as he said he would.</p>
<p>Wouldn't, at that point, the statute be complied with?</p>
<p>He would have received, been in receipt of a copy of the initial pleading.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Justice Scalia, the action... I'm going to create some language of my own... would be inchoate.</p>
<p>There's no safeguard against further editing of the complaint.</p>
<p>There's no assurance, the defendant would have no assurance that what he had, which was a conception of an action, of an initial pleading, to use the language of the statute, was, in fact, or did evolve into an initial pleading or an action.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Then look at what happens in your two examples, the way you have it.</p>
<p>Example one, in New York, somebody serves, the plaintiff serves the defendant.</p>
<p>8 days later... without a copy.</p>
<p>8 days later, he sends to the defendant, who receives it, a copy of the complaint, but not file-stamped.</p>
<p>He just sent it from his office.</p>
<p>In New York, under your theory, the period doesn't run.</p>
<p>I mean, we're all mixed up, aren't we.</p>
<p>Case number 2... maybe it's the null case.</p>
<p>The null case may be, there may be a State somewhere where you can actually serve someone before you actually begin the case.</p>
<p>Is there such a... do we know if there is such a State?</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: I don't know of such a...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: We don't know.</p>
<p>So all we have to have is a State where it's possible to serve the defendant before you file the case.</p>
<p>Then what happens?</p>
<p>What you've produced is an interpretation of the statute which will get people very mixed up, I think.</p>
<p>And indeed, her basic claim, your opponent's, is the only way that we won't get people mixed up, finding out, you know, somebody happened to get a copy sent by a paper airplane, and it went in the office, and there had been no such case filed.</p>
<p>The only way not to get them mixed up is if we simply read the word otherwise to say, otherwise after service.</p>
<p>That's all.</p>
<p>Otherwise after service, and then nobody gets mixed up, it's clear, everybody understands it.</p>
<p>Now, I'm...</p>
<p>The difficulty with that is, it doesn't say that.</p>
<p>No, it doesn't.</p>
<p>It also doesn't say otherwise not by paper airplane.</p>
<p>It also doesn't say, otherwise and we're talking in the United States.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: It also doesn't...</p>
<p>And it also isn't her position.</p>
<p>I think her position is after summons.</p>
<p>She does not require that the complaint have been given.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: What?</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: All she would require is that there have been a summons.</p>
<p>Whether or not the person... these same problems arise under the interpretation that the other side would give, because the other side does not require the complaint to have been served.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: No, no, the...</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: The other side only requires a summons to have been issued, with or without a complaint.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: That's true...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But with the copy of the complaint having been delivered.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Other...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: And the ambiguity is, what is a copy of the complaint?</p>
<p>This side says it's got to file-stamped, and filed.</p>
<p>The other side might say it is a copy if it has the same language in it word for word, even though it's delivered ahead of time.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Would you like to participate in the Court's argument?</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: I'm enjoying... I'm enjoying the discussion.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Let me ask you this question, Mr. Pugh.</p>
<p>You agree that we can't read the statute in its plainest plain meaning, that there has got to be some act on the part of the plaintiff to indicate that in fact a real lawsuit is being filed, rather than merely drafted pleadings being circulated.</p>
<p>I mean, that's your file-stamp example.</p>
<p>We've got to have something more.</p>
<p>Assuming that to be a sensible position, why isn't the best way to serve that end to say that there's got... as your opposing counsel says, there's got to be a service officially of something upon the defendant so the defendant knows beyond any peradventure of doubt that a real lawsuit has been commenced, and knows that at that point he better look at the rules and find out when the time starts running.</p>
<p>Why isn't that the easiest way to satisfy what she claims and what you yourself admit has got to be something more than merely awareness of drafted pleadings?</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Justice Souter, I think this will answer both yours and Justice Breyer's question.</p>
<p>In the words of Mr. Chief Justice, quite simply, the petitioner asks this Court to import the phrase, not service, but service of process into this statute.</p>
<p>The words, service of process, do not appear in the statute.</p>
<p>They were there in '48.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Neither does stamping of the complaint appear.</p>
<p>In other words, you're importing things, too.</p>
<p>And if you're going to import things for the very sensible purpose of saying, we've got to know that this is a real lawsuit and not a preliminary drafting exercise, then I'm not sure why we should stop at your point rather than her point, because her point puts somebody definitively on notice, and yours doesn't.</p>
<p>Yours has the problems that Justice Breyer's question raises.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: In 1948, prior to the 1949 amendment, the removal statute expressly adopted a service of process methodology to commence the running of the time.</p>
<p>Congress very quickly recognized the same difficult situations with hypotheticals.</p>
<p>They had some real examples before them.</p>
<p>But we think it's improper to conclude, and the legislative history certainly doesn't indicate that the conclusion is well-founded, that the change in '49 was limited solely to New York and Kentucky.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Would you concede it was triggered by that?</p>
<p>Because New York, with serving the summons but not the complaint, just didn't fit into this scheme.</p>
<p>So I think that even if you don't even look at legislative history, that's conceded that Congress was moved by people, States that had New York's pattern.</p>
<p>I don't know of any other one that did at the time, but...</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Yes, those were the immediate problems.</p>
<p>But to solve the problem, what Congress did was abandon, abandon service of process, and opt instead for what they hoped would be a uniform Federal standard, and that's the receipt...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Is there any other... to decide whether Congress really did that, I wondered whether there's any other instance in all of Federal procedure where a defendant is required to do something on pain of forfeiture, because if you don't do the 30 days, then you can't remove, on pain of forfeiture, without being served with a summons, without having a substitute for that sheriff seizing you.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Justice Ginsburg, we believe the answer is yes.</p>
<p>In fact that's...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: What else?</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: That's the answer to the Rule 81(c) problem.</p>
<p>If a defendant believes he has been improperly served, or that process was improper...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Not improper.</p>
<p>It didn't happen.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: It didn't happen, but nonetheless, he's received the complaint.</p>
<p>The proper procedure, and in fact it's been the policy of the courts consistently, is to resolve that issue quickly by exercising a Rule 12(b)(4) or (b)(5) right.</p>
<p>In fact, the Eleventh Circuit has a case where...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: But that, Rule 12(b)(4) or (5) is a responsive pleading.</p>
<p>And you're not required to respond to a pleading until you're made a defendant, right?</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Just by way of one example, the Eleventh Circuit has held to the contrary, and Moore's echoes that as a general policy, that in those limited instances, and it's a limited appearance, you go... the proper procedure is to go and challenge that.</p>
<p>If the defendant is correct...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: I thought the Federal Rules had done away with limited and special appearances.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: I use an archaic term, but that in effect is what it is.</p>
<p>You go and challenge the sufficiency of the service.</p>
<p>If service was improper, that defendant is done.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Well, suppose... and the term initial pleading may help your case.</p>
<p>If you define an initial pleading as a paper that has been filed in the court, you couldn't have a copy of an initial pleading unless the initial pleading had been... a pleading means something that's been filed in court.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Mr. Chief Justice, that's precisely the definition we would opt for.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Does it always mean in the rules a piece of paper that has on it a time stamp or the equivalent?</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: It would need to have...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: I mean, one could have a copy of that pleading which has been filed, but that doesn't indicate on it that it has been filed.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Even if it did not, but the defendant had some other objective indicia that an action was pending, such as the summons that was date-stamped, and an undate-stamped...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Perfect.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Then the...</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Those two together, then it's got...</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Then the objective indication is that there was a service.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: In that limited example.</p>
<p>But what Congress wanted to do in '49 is move away from that problem and opt for a receipt, a uniform receipt.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: No, but Mr. Pugh, you said they totally abandoned service, but the second half of 1446(b) does depend on time of service.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: The second phrase, which speaks of service of a summons?</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Yes.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: And that, in fact, is where... the only place that a service of process requirement is imposed.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Yes, but they... I'm saying, but they did keep it for that case, so you can't say they abandoned it.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Which, when contrasted with the first part of the statute, affirms the respondent's position that in those cases when a summons has not been served, which expressly contemplates that the situation could arise, then all that's needed, and what Congress thought was most important, was receipt of a pleading that gave that defendant notice that a removable cause of action was pending.</p>
<p>Now, often...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: So do I understand from what you've said, then... you get the fax copy, a fax copy of what was actually filed in court, so what the Chief suggested has been satisfied.</p>
<p>However, 30 days go by, and you never have been served with process.</p>
<p>On day 40 you are served with process.</p>
<p>Do I take it that you can't remove under your reading?</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: If you've received the complaint, it was... an action had...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: You've got this fax, this courtesy thing that was sent to you.</p>
<p>Then there's the 30 days to remove, but you sit there, and you have never actually gotten any kind of summons at all, and then you get a summons on day 40.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Under the plain meaning of the present version of section 1446, that defendant would have waived the right of removal.</p>
<p>Now, it's always been recognized that it was a limited and waivable right.</p>
<p>It hasn't lost any due process.</p>
<p>It can still appear in court.</p>
<p>It still has a right to trial by jury, a right to be represented by counsel, the rules of evidence, rules of civil procedure, the appellate rights that it would have.</p>
<p>It's just lost that limited, waivable right to an alternative form.</p>
<p>Now, the assertion that the 1949 amendment was a major change, and in fact the Senate report refers to it as a major change, is consistent with a longer view of the legislative history of the removal right.</p>
<p>In the earliest years, a defendant could exercise that right all the way up until the time of trial.</p>
<p>It was there because of the perception of local prejudice.</p>
<p>Down through the years, as the perception, hopefully reality of local prejudice abated, Congress has consistently drawn back the time in which that right must be exercised.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Right.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Your point... is this your point?</p>
<p>I'm beginning to see what I think I missed before.</p>
<p>You say that the case has to have begun, so that if, in fact, the defendant gets a copy of the complaint, but gets it before there's been any filing in court, that nothing happens, it's void, it doesn't have an effect, but there has to be a case that's begun.</p>
<p>Now, once that case has begun, in your opinion, the copy that he has has to be a copy that he knows is official, and if he's received through service of process an indication the case has begun, that will probably be enough.</p>
<p>If he hasn't received that, then if the complaint is time-stamped by the court, that will give him the necessary notice that it's official.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Yes, Justice Breyer.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: That's your point.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Precisely.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: Now, I come from a State that Justice Breyer alluded to in an earlier question in which the theory is that the suit begins not upon filing in court, but upon service on the defendants, so that when, in fact, the copy of the complaint is served upon the defendant, there can't be any date stamp because you don't file anything in court until you've completed your service.</p>
<p>Under your interpretation, the time period does not run in my State, I take it, even upon service, is that correct?</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: The action...</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: There's no stamp on it.</p>
<p>Nothing's been filed in court.</p>
<p>Does the... when the first defendant is served, does the 30-day period start running as to that defendant, in the State of New Hampshire?</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: In your hypothetical case, I think not.</p>
<p>An action had not been commenced.</p>
<p>Now, again, the facts of the case...</p>
<!-- sandra_day_oconnor--><p><b>Justice O'Connor</b>: But we don't know if any State allows such a thing, do we?</p>
<p>Well, yeah.</p>
<!-- david_h_souter--><p><b>Justice Souter</b>: I come from one.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Justice Souter's example suggested that it did.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Was New Hampshire admitted yet?</p>
<!-- unidentified_justice--><p><b>Unidentified Justice</b>: [Laughter]</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: If you have a State, and there are many such States, where the statute of limitations is tolled only upon service, and in your case, if the defendant gets a... in many cases they're filed right up near the deadline.</p>
<p>In your case, I take it, you would require the defendant to remove even before he's served, and the statute of limitations may later run.</p>
<p>I suppose he has waived the statute of limitations by removing.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: I don't know of a case to cite for the proposition, but I think that would be an incorrect proposition, Justice Kennedy, to the same extent that one does not waive Rule 12 defenses.</p>
<p>The mere... the act of removing...</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: Isn't that an appearance in the case?</p>
<p>Is the removal an appearance, is it not?</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Yes, for a limited purpose.</p>
<p>In essence, if I could use a colloquialism, it's reserving a seat at the opera.</p>
<p>It's saying, if I do... if I do have to proceed with a full defense on the merits in this case, I am now asserting my right to proceed in the Federal forum as opposed to the State forum.</p>
<p>That's all that's taking place.</p>
<p>If service has not been achieved, the proper procedure is to pursue... file a motion under Rule 12.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: All right.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: I mean, I don't know... what you've done, which is very interesting, which I hadn't quite taken in, is you've worked out a way both to win your case and also deal with most of the practical problem that they... your opponents have raised.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Yes.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Because in your opinion, it can't happen that you'd file these informal copies, throw them through the window, whatever.</p>
<p>I understand that.</p>
<p>But now I'm sort of at a loss to decide this case.</p>
<p>That is to say, what... either way, we have to read quite a lot into this statute, don't we, either way.</p>
<p>And then I guess what they have going for them is that their way seems more commonly accepted than the way you've come up with.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: To the extent that a court is interpreting receipt, or initial pleading, the importation of some meaning is a proper inquiry, we would suggest.</p>
<p>The importation of the phrase, service of process, which was there expressly, and just as expressly abandoned in 1949, is a much longer leap, if you will, farther leap.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: What they're thinking of, imagine a big office with about 100 people in it, and they have to run these offices, you know.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: It's a business.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: It's a big business and so forth.</p>
<p>And so once that process has been filed people are on notice, and if they start getting copies of complaints after that, they'd better take it seriously, but the fourth assistant may not know the significance of this time stamp.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Well, in the facts of our case, the person who actually received it, whether under the Alabama rules or the Federal rules, is a person upon whom service could be effected.</p>
<p>We agree, as the Sixth Circuit, the first circuit to address this, pronounced in its opinion, that recognizing that a corporation is a legal entity that must act through its human agents, they had to decide upon whom this receipt determination could be evaluated, and they suggested, it ought to be a person upon whom service could be effected.</p>
<p>That's not offensive to our position, it's consistent with our position, but that's an interpretation of the word receipt, which is in the statute.</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: So in the case of the Government, that was concerned because of the special service requirements when you're suing the United States, would you say the complaint then would have to be actually received by all of the people who are entitled by statute to be served?</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: We think so, and that's consistent with our position.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: It's consistent with your position, but you recognize that you're doing a little construing of the meaning of the word copy.</p>
<p>It's got to be file-stamped.</p>
<p>And you're also construing the word receipt.</p>
<p>It's got to be received by a person authorized to take service.</p>
<p>But you don't think there's any room for leeway in defining the term defendant to include someone to say you're not a defendant until you're served with process.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Well...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: So your literal... your... you do a little construing for two words, but not the third.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: We think, in fact, the defendant, the use of the word defendant in 1446 is consistent with the broader meaning.</p>
<p>As it was observed, defendant without the qualifying language does appear in several other instances, the removal act.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: No, that's true, but in order... one might say that in order to make sense out of this statute and solve all the problems, all you have to do is construe the word defendant for purposes of this statute to mean, a person who is both named in the complaint and has been served with process.</p>
<p>If you construe it that way, all the problems are gone.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: But Justice Stevens, those words aren't there.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: I understand that, but if we construed it that way, just as we construe copy to include the file stamp and receipt to be receipt by an officer, if we did construe it that way, there'd be no problem.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: And Congress could have opted for that.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: But that's not true.</p>
<p>You would still have to construe... I mean, it's not whether you construe defendant instead of construing the other two.</p>
<p>It's whether you construe defendant in addition to construing the other two, because the problems as to whether this is the genuine complaint or not would still exist even if the... even if summons without a copy of the complaint has been received, and the problem whether you can serve it on agents of the Federal Government, set forth in the Federal statute, whether that would constitute receipt, those problems would still exist even if a summons has issued without the complaint, isn't that right?</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: That's correct.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: So...</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: But they're not very difficult problems.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: And it hits upon what we believe Congress thought was the primary reason for the changes.</p>
<p>Their inquiry was directed at communicating, conveying, transferring to the defendant the notice that a removable cause of action was pending against it, and that's when they opted for this, as the Senate report said, a major change in the previous methodology from the service of process.</p>
<p>There has been much discussed with respect to the perceived unfairness in some of the extreme hypotheticals.</p>
<p>The Eleventh Circuit recognized that the unfairness, to the extent it was present, was...</p>
<!-- ruth_bader_ginsburg--><p><b>Justice Ginsburg</b>: Before we go to the unfairness, I'm thinking back to 1949 and what lawyers and judges understood about the State asserting its power over an individual.</p>
<p>That required something official, like service, so why shouldn't we think that that's implicit?</p>
<p>It was set so strongly in the common law tradition that the State must assert its authority over you, otherwise you're not subject to the State's power, and it wasn't left to your adversary to assert that power.</p>
<p>That was, I think, the general understanding of lawyers and judges in 1949, and isn't that part of what we should take into account?</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: That is a proper analysis of the need for the mandate, in fact, for the service of process, but that is not implicated in the removal scenario.</p>
<p>All one is doing is preserving, taking out that ticket, preserving the right to proceed if in fact service is properly effected subsequent to the actual removal, reserving the right to proceed in the Federal forum.</p>
<p>The only thing that that defendant must do, and there are cases holding this, that it can be waived if this is not exercised, is going and challenging the service or the process under Rule 12 (b)(4) or (5).</p>
<p>If that defendant is right that he was not served or was improperly served, that action is concluded in all instances, and we can assume it would be without prejudice, and it might be effected later.</p>
<p>If he's wrong, that action would then proceed, but he's preserved his right to remove, and all is well.</p>
<!-- antonin_scalia--><p><b>Justice Scalia</b>: And he would be able to challenge the service immediately in Federal court, instead of having to challenge it in State court.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: That's correct.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: May I just confirm one other... you agree the word defendant is a matter of Federal definition, not State, so that even if there are State statutes that said, you don't become a defendant until you're served, we would ignore that State statute.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: My inclination, without thinking about all the possible ramifications, is that we are talking about the Federal right of removal, a limited, waivable right, and if we have to construe that word for purposes of determining whether a receipt has occurred, I would be inclined to go with the Federal definition.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: If a lawyer for a prospective defendant finds out a complaint's been filed and gets it for his own client and sends it to him, I suppose he could be in big trouble under your interpretation.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: It would depend upon how far the district courts would go in interpreting receipt.</p>
<p>We suggested in our brief that that implies an affirmative act.</p>
<p>We had to address the hypotheticals.</p>
<p>The facts in our case do not involve that, but we suggest it implies an affirmative act on the part of the plaintiff, not unlike an attempt at service, but it's not necessary to reach that.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: So if you go down yourself, the client defending himself, to the courthouse and gets a certified copy of the complaint, that's not enough.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: In fact, that's what happens in a State like Kentucky.</p>
<p>The... it's incumbent upon the defendant to go and see if the pleading states a removable cause of action so that he may then exercise his removal rights if they're proper.</p>
<p>Again, the import... what Congress recognized in 1949 and has echoed in both the Senate and the House report, is that we've got a parade of horribles with the service of process hypotheticals just as you can imagine under the receive analysis, but we're going to abandon that service of process methodology, because that is clearly tied to 50 different States' rules.</p>
<p>We're going to adopt a new methodology, and that's going to be based upon receipt of an initial pleading that sets forth a removable cause of action, because our intent in 1446(b) is to get notice to that defendant that it had better do something or risk waiving its removal rights, and that, at least the 1949 Congress thought was best achieved by requiring receipt, and moving away from the service of process, a phrase that it dropped entirely.</p>
<p>It had been the sole methodology in the statute the year before, and it moved away.</p>
<p>In fact, if all Congress intended to do was to solve the New York/ Kentucky problem, a semicolon provided comma however clause at the end of the 1948 statute would have been the best manner, saying provided, however, that in those States in which a complaint, an initial pleading setting forth the removable cause of action, is not required to be filed or served until later.</p>
<p>Then the time will run when that is received, or served, or whatever methodology they chose.</p>
<!-- stephen_g_breyer--><p><b>Justice Breyer</b>: Maybe they did that.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: There's no indication in the legislative history.</p>
<p>It's just... it's erased, and they started from scratch.</p>
<p>I was about to address the unfairness issue.</p>
<p>We think the Eleventh Circuit correctly pointed out that the unfairness concerns are largely if not completely addressed when the state of the law is settled.</p>
<p>All it will take is for this Court to adopt and enunciate the receipt rule and the uncertainty that litigants have as to what to do is then resolved.</p>
<!-- john_paul_stevens--><p><b>Justice Stevens</b>: Well, it's not resolved if the defendant's lawyer goes... as Justice Kennedy's example.</p>
<p>It's not resolved for my case of a copy mailed before the case is filed at all.</p>
<p>They're still open.</p>
<!-- j_david_pugh--><p><b>Mr. Pugh</b>: Again, we think the initial pleading, Justice Stevens, the initial pleading only would require that the action actually be commenced.</p>
<p>Rebuttal of Deborah A. Smith</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Mr. Pugh.</p>
<p>Ms. Smith, you have 3 minutes remaining.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: How would you revise this statute if you were rewriting it so that... and incorporate your client's position?</p>
<p>I mean, that's in effect what you want us to do.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Well, I certainly would not suggest that I am a drafter of statutes.</p>
<p>I think there certainly are ways that this statute could have been better worded.</p>
<!-- anthony_kennedy--><p><b>Justice Kennedy</b>: You want to say, after receipt by the defendant, comma, after due service, comma...</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: I would have said, receipt or service, whichever is later.</p>
<p>That still wouldn't deal with the Kentucky problem.</p>
<p>The second phrase would still have to be put in, but I think that would be better language.</p>
<p>But I don't think that Congress always uses what we think to be the best language, and I don't think that indicates that is necessarily not what they intended.</p>
<p>I think the respondent's suggestion that the 1949 amendment was intended to make a major change... and he's correct, there is a sentence in the legislative history that says this makes a major change, but it made a major change in the context of the bill in which the statute was amended.</p>
<p>There were 174 changes made to the 1948 statutes, and in that context it was a major change because about 170 of those were typographical errors and clerical errors that were being corrected.</p>
<p>There's nothing... what the legislative history indicates is that Congress' concern was dealing with this New York problem, dealing with the question of what happens if the defendant doesn't have a copy of the complaint from which to determine that his case is removable.</p>
<p>There's nothing to indicate that they wanted to completely divorce the removal provisions from State service of process rules.</p>
<p>I think in addressing the fundamental fairness question, I think there are circumstances where the process would be fundamentally unfair even under Mr. Pugh's interpretation of the other terms within the statute.</p>
<p>For example, a foreign corporation, a defendant receives... a foreign defendant corporation receives a faxed copy of a file-stamped complaint.</p>
<p>Well, they don't necessarily... they can't even necessarily read it.</p>
<p>There certainly is no reason that they should understand the significance of it and know that they have to act immediately to protect their interests.</p>
<p>Under the service rules, those kinds of issues are taken care of.</p>
<p>A foreign defendant is normally served under the Hague Convention, or most of them are, and it requires that the allegations of the complaint be translated into their language, and that the complaint be... summons and complaint be sent to a central location, which is usually the consulate, from which formal service is made.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: Thank you, Ms. Smith.</p>
<!-- deborah_a_smith--><p><b>Mr. Smith</b>: Thank you.</p>
<!-- william_h_rehnquist--><p><b>Chief Justice Rehnquist</b>: The case is submitted.</p>
<p>The honorable court is now adjourned until tomorrow at ten o'clock.</p>
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Fri, 09 Jan 2009 14:50:14 +000058590 at http://www.oyez.orgNorthern Pipeline Const. v. Marathon Pipe Line - Oral Argumenthttp://www.oyez.org/cases/1980-1989/1981/1981_81_150/argument
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<a href="/cases/1980-1989/1981/1981_81_150">Northern Pipeline Const. v. Marathon Pipe Line</a> </div>
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Fri, 09 Jan 2009 14:47:29 +000055348 at http://www.oyez.orgNavarro Savings Assn. v. Lee - Oral Argumenthttp://www.oyez.org/cases/1970-1979/1979/1979_79_465/argument
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<p>Argument of Bernus Wm. Fischman</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: And we'll hear arguments next in Navarro Savings Association against Lee.</p>
<p>Mr. Fischman, you may proceed whenever you are ready.</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: Mr. Chief Justice, may it please the Court.</p>
<p>Bernus Fischman of Houston, Texas for the petitioner, Navarro Savings.</p>
<p>Your Honors, certiorari was granted in this case to review a decision of the Court of Appeals for the Fifth Circuit which held that the citizenship of a Massachusetts business trust, in this case, a real estate investment trust, was that of each of its trustees as opposed to its some 9500 beneficial shareholders.</p>
<p>The petitioner believes that the case although one of first impression on the narrow point now before this Court, that is as to a real estate investment trust as a particular species of business organization, although it is a case of first impression that it is well governed by previous decisions of this Court.</p>
<p>The -- the principal decision or pair of decisions which believe are governing in this case are Morrissey versus Commissioner, cited in the brief, and that of United Steelworkers versus R.H. Bouligny and company.</p>
<p>The Bouligny case – well, let me do it first with Morrissey.</p>
<p>Morrissey holds that a real estate investment trust is an association as opposed to some other species of entity.</p>
<p>It says in effect in the – the holding of the case is that it would be taxed as an association under the applicable provisions of the Internal Revenue Code.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: They don't purport to govern jurist -- diversity jurisdiction?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: No, Your Honor.</p>
<p>The -- the Morrissey case is addressed particularly to the statutory construction of the Internal Revenue Act, but I think a careful reading of a case and we say this in our brief.</p>
<p>The case does not confine itself to application on the narrow issue of what is this entity for purposes of the Internal Revenue Code.</p>
<p>What it does say is this entity is a business trust and we will treat as such incidentally for tax purposes.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: No.</p>
<p>My -- my question was not so much that the Morrissey case may not have relied on the Internal Revenue Code, but that perhaps, it may have been wrong in relying on the Internal Revenue Code.</p>
<p>Since we do have a diversity jurisdiction and for fairly, carefully defined statute setting out what shall be this test and for jurisdiction of the federal courts.</p>
<p>Why go to the Internal Revenue clauses?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: I don't believe we're looking to the Internal Revenue Code, Your Honor, to determine where the jurisdiction lies.</p>
<p>As we say in the brief, it's really a two – a two-point analysis.</p>
<p>All Morrissey says is, “This entity is a business association.”</p>
<p>We're not going to treat it as a conventional trust, because it has the features of continuity or perhaps perpetual life.</p>
<p>It has the features of transferability of interest.</p>
<p>It's an active, ongoing business organization that has the object of making money and distributing the gains to the -- the beneficial interest holders.</p>
<p>It's not a trust.</p>
<p>That's all that we say Morrissey holds.</p>
<p>To find out where the jurisdiction lies, one must then look to the Bouligny case, which is in itself only the natural outcropping of it's antecedents, the prior decision of this Court in Chapman versus Barney in 1887 I believe, decision of this Court, in which it was held as a matter noticed by the Court as opposed to anything that was suggested by either of the parties in their -- in their briefs that -- that the District Court or excuse me, the Circuit Court at that time did not have jurisdiction because the -- the entity there was – it's called an express company.</p>
<p>It was in essence, of joint-stock association and therefore, as it has been characterized, a -- a mere partnership.</p>
<p>And the Court said, “We must look to the citizenship of each of the constituent members of this entity that have aggregated themselves for the purposes of conducting business.</p>
<p>The next case to come along was the great --</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: But you're talking about the 1887 case now?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: Yes, Your Honor.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Do you think the changes in modes of doing business in that time with this was anything to do with how would this case should be viewed?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: None whatever, Mr. Chief Justice.</p>
<p>We believe that the basic principle is one that is -- adheres from the earliest concepts of our federal – our -- our system of federalism which is, at ordinarily, this cases belong in the state courts and this was pointed out in the Carlsberg decision we've -- we cited in our brief.</p>
<p>That there is a – this federalism concept that says these cases belong in the state courts, unless there is a good reason they belong in the federal courts.</p>
<p>If you go back to the -- the problems that this Court -- in the antecedents that this Court had in -- in wrenching with the decision of what to do with corporations, they were artificial persons.</p>
<p>They had no citizenship of their own.</p>
<p>So originally, in Bank versus Deveaux, the Court said, “We're going -- we're not going to treat them as -- as an entity.</p>
<p>We're going look to the citizenship.”</p>
<p>The Court then reversed itself in the next case.</p>
<p>And then finally, in the Marshall versus Baltimore & Ohio case, the Court said, “All right, we're going to treat this entity as being comprised of its individual shareholders, its beneficial interest holders, but we're going to indulge in the fiction that all of these people reside in the State of incorporation.”</p>
<p>Now, this persisted until the 1958 Amendments to the judicial code which said, “We're now going to codify that fiction,” but there has been no other effort on the part of Congress to recognize real estate investment trust, limited partnership, joint-stock associations or other forms of unincorporated associations.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: But point you've just said suggested – suggest at least to me, that over the last century the -- the varying modes of business and practices have been reflected in decisions of the courts.</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: This is true, Your Honor.</p>
<p>But, if we look to the Bouligny case, we find that a labor union is certainly a type of entity that I don't believe existed in any great quantity during the -- the early part of the development of this country.</p>
<p>The labor unions became strong, really as entities at the beginning of this century.</p>
<p>In the Bouligny case this Court said – speaking to Mr. Justice Fortas that we will not extend this rule to comprehend the labor union.</p>
<p>We will not indulge in the same fiction for the labor union that we have indulged in a corporation and the Court could conveniently say that I think, because at that time the corporation had been treated by Congress.</p>
<p>And this is why the opinion says that please, for extension of the diversity jurisdiction should be addressed to the Congress.</p>
<p>And I think that's what the -- what the respondents have argued here in – a part of their brief, we finally get down to it and they say, “This is what the rule ought to be.”</p>
<p>This Court should create a fictional citizenship for this one particular type of entity, a Massachusetts business trust.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: Wouldn't you agree to the place for contraction of the – diversity jurisdiction should be addressed to Congress?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: I don't believe it would represent a contraction, Your Honor, Mr. Justice Rehnquist, because the rule traditionally has been that it must be the citizenship of the individual person and not an, aggregations of persons.</p>
<p>I don't believe it's contracting the – the federal jurisdiction, the diversity jurisdiction of the Federal District Courts.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: I take that you think that this decision expanded it?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: I think unquestionably, Your Honor.</p>
<p>For example, the Carlsberg court treated – this was a Third Circuit decision and the Carlsberg court said that it would in fact be expansive of a -- of the jurisdiction.</p>
<p>The Court says --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Is there a Circuit Court case against you?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: No.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Except to – except the one (Voice Overlap) --</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: The instant case.</p>
<p>There are other cases, Your Honor, and we have --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: About the Second Circuit?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: The Second Circuit has not ruled directly on this issue.</p>
<p>The Second Circuit concerned itself with a case called Colonial Realty versus Bache & Company.</p>
<p>And that case did not deal with the Massachusetts business trust.</p>
<p>It dealt with a limited partnership.</p>
<p>Now --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: But it gave the limited partnership a separate existence, didn't it?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: It did, Your Honor, and it care --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: And that traditionally –- and that would have been subject to the individual membership rule.</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: It should have been and arguably that case is wrong.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: That was an -- that was an expansion of jurisdiction too, you think?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: We believe, clearly it was.</p>
<p>The -- the Bache or Colonial Realty versus Bache case has been extensively criticized in the decision of the Third Circuit in the Carlsberg court, Carlsberg versus Cambria Savings & Loan.</p>
<p>Now, that case likewise involved a -- a limited partnership.</p>
<p>And what the Court said is, “We are unwilling to engraft upon traditional diversity principles, the provisions of Rule 17 to determine diversity, to determine the citizenship of the parties.</p>
<p>Rule 17, if it does, do that and perhaps it conflicts with Rule 82 under the construction that the respondents have argued for, Rule 17 would become in effect, a jurisdictional rule as opposed to one that merely determines the capacity of the party.</p>
<p>And I think that's what Rule 17 was directed at.</p>
<p>The –- the -- it seems that the respondents have sort of put the cart before the horse.</p>
<p>They're saying, “Let us look to Rule 17 to determine where the jurisdiction is and then we'll see if there's diversity.”</p>
<p>It doesn't make sense.</p>
<p>And this is what the Court in Carlsberg looked at and as the respondents concede in their brief, there really is no practically difference between the limited partnership and the real estate investment trust.</p>
<p>Now, I would like to turn for just a moment and discuss the -- the cases that were cited extensively by the respondent.</p>
<p>The -- the several lines of cases, Dodge versus Tulleys, Wyoming and Susquehanna Railroad versus Blatchford, and --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, if we have taken the Second Circuit case and affirmed it, I suppose you would -- would probably be wouldn't even be here.</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: Well, we're –- of course we're here, Your Honor, with all due respect, because the Court granted certiorari on the point of the --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, I know (Voice Overlap) it -- it might not have petitioned.</p>
<p>Do you think, if we happen to – if we -- if we had previously agreed with the Second Circuit in a limited partnership case, would that have ruled this case, you think?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: It certainly would have a telling effect upon it.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Yes.</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: It certainly would.</p>
<p>I don't know that the Court will see any distinction between the Second Circuit case and this case.I -- I honestly don't see any distinction between the limited partnership and the real estate investment trust.</p>
<p>They all have continuity of interest.</p>
<p>They all have a -- a body of shareholders who have delegated to a group of trustees, curators, managers, directors, whatever you would call them, the managerial duties of their entity.</p>
<p>But it doesn't change the basic fact that they're the real parties and interest in this case, if real party and interest analysis is indeed, even the correct way to approach the case.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Where all practical purposes, what do you regard as the differences between a corporation with -- with directors and 9500 stockholders and this situation, practical now.</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: Mr. Chief Justice, I don't think there are any practical distinctions in the two.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: That's what the Fifth Circuit seemed to think of, wasn't it?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: I think that may be correct, Mr. Chief Justice.</p>
<p>But I think what they're doing then is they're engrafting or they're establishing there, a whole new species of quasi-corporation if you will, into the diversity jurisdiction.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: With that –- that's been going on over the last 100 years hasn't it, to some extent?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: I think the decisions of this Court, Mr. Chief Justice, show that when it has reached this Court, the Court has held that the citizenship of the unincorporated association as that of its members.</p>
<p>I think to say otherwise, is to in effect, overrule Bouligny at least implicitly and create for the labor union, for example, a form of a second class citizenship.</p>
<p>I can't really see any -- any distinction between the modern labor union and the modern business trust.</p>
<p>They are both comprised of aggregates of -- of people, of citizens, of live human beings who come together under one banner for the purpose of conducting their business and accruing gains or benefits to the party.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: One difference I suppose with the union is that – for most its litigation – not every case because Bouligny teaches to the country.</p>
<p>Most of its litigation, it probably has a federal question that it can assert and when it sues an employer under the -- under the federal statute.</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: I'm --</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: There isn't an awful lot of litigation by, with unions that requires -- it's based on diversity is there, in the federal courts.</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: I'm -- I'm really not prepared to answer that, Mr. Justice Stevens.</p>
<p>I could only say this, “In the Bouligny case, the -- the issue involved a libel brought by the --</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Right.</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: -- company against --</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Yes.</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: -- the union which was clearly a state-created right and clearly belonged in the -- in the -- the State unless there was some bona fide basis for them.</p>
<p>We want to respond briefly to the -- the cases that deal with the trust.</p>
<p>Several of these cases that are cited, I think are distinguishable on the fact that all of the parties did in fact have diverse citizenship, even including the beneficial interest holders and including the trustees.</p>
<p>That's the case of the Dodge versus Tulleys and Bullard versus City of Cisco.</p>
<p>In those cases, which are relied upon by the trustees in this case, you already had diversity anyway, and I don't think that the -- the points made in those cases are necessary for the decision that was ultimately made.</p>
<p>In the Wyoming and Susquehanna case Blatchford, the -- the Court held there was no jurisdiction, because the trustee in the case did have the same citizenship as one of the defendants.</p>
<p>They were both residents of Pennsylvania.</p>
<p>So I don't know how much those cases furnish a -- a dichotomy between the line of cases of Bouligny, Chapman versus Barney, Great Southern Fire Proof Hotel, which was a case that involved a limited partnership which was decided by this Court and is nearly as I can see, squarely conflicts with the Second Circuit case which this Court denied sort on, but certainly did not hear and -- and affirmed.</p>
<p>I'll save the balance of time, Your Honors, if I may, for rebuttal.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Very well.</p>
<p>Mr. Ellis.</p>
<p>Argument of James A. Ellis, Jr.</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: Mr. Chief Justice and may it please the Court.</p>
<p>First, I must disagree with my learned colleague as to the essence of the holding of the Fifth Circuit.</p>
<p>It is my reading of the decision by the Fifth Circuit that the individual plaintiffs who alleged that they were trustees of a business trust were the real parties and interest and that it was their citizenship that governed the question of the diversity of citizenship jurisdiction.</p>
<p>It was --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: That is the test you're proposing, real party and interest.</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: That is I believe that essence of the test.</p>
<p>That's correct Your Honor.</p>
<p>Like Mr. Morrissey, in the Morrissey case the plaintiffs in this case were trustees of an expressed trust.</p>
<p>The long ran of decisions that are cited in the briefs by both sides, hold two basic premisses that I think are essential to the analysis of this case.</p>
<p>Those cited by Mr. Fischman on behalf of his clients including Chapman versus Barney, and Marshall versus Baltimore & Ohio Railroad and the Bouligny case, all stand for this proposition that in unincorporated group of individuals that by state law or otherwise have the right to sue in a joint name are -- that joint name is nevertheless not a citizen.</p>
<p>Citizenship is a status that is attributed only to flesh and blood individuals and when there's a suit in a joint name, it becomes incumbent upon the Court to determine who really are the flesh and blood individuals that are suing in that name.</p>
<p>The cases which we cited I think hold to the proposition that when a suit is brought in the name of a trustee for the benefit of a beneficiary, really and truly, then it is the citizenship of the plaintiff, the trustee and not the citizenship of the beneficiary that governs the question of diversity jurisdiction.</p>
<p>Only when it is a non personal suit, that is a suit by an entity or in the joint name of several individuals do we have to question that counsel poses and that is trying to determine the citizenship of that name or that entity.</p>
<p>To analyze this case, we think it's important that the Court consider the basic purpose of the diversity jurisdiction, Mr. Chief Justice Marshall early in this Court's history, commented that the draft of -- of the Constitution either had apprehension as to the impartiality of the state courts or at least viewed with indulgence, the possible fears and apprehensions in that regard, that suitors might have.</p>
<p>The purpose of the diversity jurisdiction is to provide a device to give some protection against local prejudice.</p>
<p>Another kind of prejudice that is -- prejudice is a subject that this Court deals within many ways -- of course, this is not prejudice based on race, religion, or sex, but it is prejudice against United States citizens based upon their domicile, their citizenship in a State other than the State of the opposing party, the State before.</p>
<!-- Harry_A_Blackmun--><p><b>Justice Harry A. Blackmun</b>: You wouldn't have that in Texas, should it?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: I'm sorry, I didn't understand you.</p>
<!-- Harry_A_Blackmun--><p><b>Justice Harry A. Blackmun</b>: So you wouldn't have that in Texas, would you?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: Your Honor, I must say that there is that apprehension among some litigants in Texas and I suspect in most of the other States also.</p>
<p>I must say that that was one of the reasons that this case was brought in the federal court rather than the state court.</p>
<p>Whether it's true or not, no one will know, but the apprehension of local prejudice is one of the motivating factors for bringing the suit in -- in --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: And what basis is that for, to get the same jury?</p>
<p>It's same people in -- on the juries?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: Your Honor, I disagree with that.</p>
<p>In the federal court in Dallas, the juries are selected from the Dallas Division of the Northern District of Texas, encompassing both rural and urban localities.</p>
<p>In the state court in -- of course, at Kinney County where this -- where then you would have been placed in the state court system here, the juries would have been selected only out of that rural county and that we feel that it is a significant difference to be able to choose both the broader spectrum of the jurors and the Article III judge to hear the case.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Do you have any formal -- any Article III judge to perform as state judges?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: Certainly, yes.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Yes.</p>
<p>Judge Hughes, for example.</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: Yes, sir.</p>
<p>There are a number of Article III judges --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: (Voice Overlap) --</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: Yes.</p>
<p>And I must say though that those judges who have become Article III judges in Texas, no longer have to stand for election in partisan elections, as other judges do and we feel have a greater capacity for impartiality.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Let's not get discussing what we don't know about.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: No.</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: Yes, sir.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: That is as --</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: I -- I'd like to move the --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: -- (Voice Overlap) by my Brother Marshall, if you have a -- if there's diversity of citizenship here, then you have a right to bring your lawsuit in a federal court without showing any prejudice or anything else and if there isn't, you don't.</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: That's correct.</p>
<p>That's -- that's correct.</p>
<p>And the -- and the question is a simple question and we think that the answer is an easy question -- easy answer.</p>
<p>Is this a controversy between citizens of different States?</p>
<p>The question is who is the controversy between?</p>
<p>We must examine the controversy that is the controversial facts, out of which the case arose, the case itself as pleaded by the plaintiffs and the parties to both the controversy and the lawsuit.</p>
<p>The answer we think should be not mere theory, but a real and practical answer.</p>
<p>Now, who is the controversy between?</p>
<p>Is it between the plaintiffs on the one hand, all of whom are individuals who are citizens of a State other than Texas and on the other, a Texas corporation that has its principal place of business in Texas?</p>
<p>What is the controversy?</p>
<p>The controversy is a suit between the plaintiffs who alleged that in our capacity as trustees, they entered a business transaction that involved the defendant, Navarro Savings Association.</p>
<p>They contend that they lent $850,000 and accepted a note payable to them as trustees and that as part of that transaction, they received a take-out commitment, a commitment to make loan from Navarro and that there was breach of that commitment.</p>
<p>They claimed damages and seek relief.</p>
<p>Of course, there was no trial in this case, it will be incumbent upon the plaintiff, upon remand to prove that they're entitled to the relief they seek including that they are entitled to receive that relief in their capacity as trustees.</p>
<p>There was no challenge in the trial court that the plaintiffs, the individual trustees here, lacked capacity sue.</p>
<p>That they were -- there was no challenge that they were not the real parties in the interest, there was no challenge that any of the 9500 beneficial shareholders were necessary or indispensable party to the lawsuit.</p>
<p>There was no challenge that there was any improper joinder of plaintiffs, or collision, or any other improper device to create diversity jurisdiction.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: I assume all these trustees are shareholders?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: It is alleged that three of the eight are shareholders.</p>
<p>The trial court dismissed the case apparently by following this argument.</p>
<p>Premise number one, this is a suit by the trust rather by the individual plaintiff trustees.</p>
<p>We disagree strongly with that, and the Court of Appeals of course held very specifically, that the trust was not a party to the lawsuit.</p>
<p>It was the individual trustees, who were the plaintiff.</p>
<p>But premise number one is that this is a suit by the trust.</p>
<p>Premise number two is that the trust is not a citizen.</p>
<p>We agree with that.</p>
<p>The trust is not a citizen.</p>
<p>Premise number three, is that we must determine what the citizenship of that trust is and we conclude that it is that of all the shareholders.</p>
<p>And therefore, it is really a suit by 9500 people who were -- who were not involved in the transaction, who are named plaintiffs, who have no involvement in the litigation.</p>
<p>That is the argument we contend that the trial court's dismissal of this case was based upon and we think that it is not correct and that the Fifth Circuit was correct in reversal.</p>
<p>The proper analysis we think is this, assuming that we are in error as to the premise number one and that this really and truly was a suit by the trust, rather than by the trustees --</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: Counsel, when you at least say, “By the court trust,” are you using the term, “trust” to mean Massachusetts business trust as opposed to corporation or individual, as a method of doing business?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: I believe that that is the sense in which I'm using the word.</p>
<p>Of course, a trust is hard to define metaphysically.</p>
<p>It is a relationship between some beneficiaries on one hand and some trustees on the other.</p>
<p>In this situation of course, there is a right to sue in the name of the trust.</p>
<p>And the question is, who is it really that's suing in the name of the trust?</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: Is the trust a -- a person or a thing?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: Again, I believe that it is a -- a series of rights and responsibilities between some beneficiaries, some people here, and some trustees, some people over here, and that it is not a thing or a person.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Well, if you had to choose between the two alternatives, Mr. Justice Rehnquist of course, gave you, wouldn't you say it's a thing?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: It is a thing in a sense that of course, it has no citizenship.</p>
<p>It is not a flesh and blood person, of course.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: It's an entity.</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: It is an entity.</p>
<p>Is -- that's one way to view it.</p>
<p>That's correct.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: What does it call itself when it issues things to its shareholders if -- over their interest -- over its interest holders?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: I believe --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Its beneficiaries.</p>
<p>What are they -- what does it call itself?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: It -- if calls itself generally Fidelity Mortgage Investors, using the name of the trust as -- as the thing that is communicating with the trust -- with the beneficiaries.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Isn't the answer to the question that it is simply a name?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: It is a name.</p>
<p>It is simply a name.</p>
<!-- unk--><p><b> Unknown Speaker</b>: It's -- It's a trust to which a name has been given?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: That's correct.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Do you see any analogy to this trust and to the trust of a corporate trustee for mortgage or the venture holders?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: In many ways, I believe it is the exact the same --</p>
<!-- unk--><p><b> Unknown Speaker</b>: Do you have any authority that answers the question as to who's entitled to -- to sue with respect to diversity jurisdiction and where the party is a -- is a corporate trustee or the trustee under mortgage or the venture agreement?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: Your Honor, we have cited a number of those in our brief --</p>
<!-- unk--><p><b> Unknown Speaker</b>: Yes.</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: -- decisions by this Court.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Right.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, that is the usual room for express trust isn't it that the trustees can sue?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: That's correct.</p>
<p>And that is the rule that we relied on --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: But that wasn't -- but that wasn't the -- that wasn't the rationale of the court below, was it?</p>
<!-- unk--><p><b> Unknown Speaker</b>: I think it was.</p>
<p>The trust agreement itself describes it as an express trust, doesn't it?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: Yes, it does.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Who -- who holds title to the property?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: It is the trustees who hold legal title.</p>
<!-- unk--><p><b> Unknown Speaker</b>: That's what I'm talking about.</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: That's correct.</p>
<!-- unk--><p><b> Unknown Speaker</b>: They're the only people, who can convey it, aren't they?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: That's correct.</p>
<p>They are the only people who have right to manage it.</p>
<p>The only people who have right to collect, that's owed to the body of the trust, the only persons who have right to sue for those rights.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: For them, first of all, did it analogize it to the express trust?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: I believe they in fact held that it was an express trust.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: And that's it's a -- and it's also like the limited partners in a limited partnership?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: By analogy, the court below referred to the limited partners in a -- in a limited partnership that is --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: As being the ones who -- who had the citizenship pursued.</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: That is correct.</p>
<p>The general partners have the citizenship that counts for purposes of a suit in the name of that partnership.</p>
<!-- unk--><p><b> Unknown Speaker</b>: (Voice Overlap) -- the limited partner?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: I -- I beg your pardon.</p>
<p>The general partners, excuse me, Your Honor.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: Well, then in the 9500 other people who have some sort of interest -- simply have interest in the corpus of the -- of the trust.</p>
<p>They have no right to manage or convey proper, that sort of thing.</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: Your Honor, that is correct.</p>
<p>They have no rights in that regard at all.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: But they do have the right to take out trustees tomorrow if they want?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: They do have that right on a majority vote.</p>
<p>That's correct.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Well, is that fundamentally different do you think from the rate of stockholders to dismiss directors or no?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: No, Your Honor.</p>
<p>I don't believe it's fundamentally different.</p>
<p>I believe it is essentially the same.</p>
<p>The question then is who sued in this case?</p>
<p>We think this is the test that is most simple, most basic and most correct.</p>
<p>Who sued?</p>
<p>Who are the real plaintiffs?</p>
<p>If it's an in -- some individuals who sued and if there is no need for adjustment of the parties by adding or subtracting parties or realigning the parties that is if the people, the individuals who sued are real parties and interest with capacity to sue, then it is their citizenship that governs and at this case, we contend, is decided by that principle.</p>
<p>If on the other hand, it is a name that sues Fidelity Mortgage Investors in this case, the court must determine who it is that is behind that name.</p>
<p>Whose citizenship must govern?</p>
<p>In that regard, we think that it would be proper to look to the state law and to the documents establishing that trust or limited partnership to determine who has the right to sue as between the beneficiaries and the trustee on the one hand, who can be sued, who has limited liability, who has unlimited liability, who has the right to transact business from which the controversy arose.</p>
<p>Who is the agent for whom?</p>
<p>And by looking at those principles, it can be determined that in this case, the real people who sued even if it was FMI, the Fidelity Mortgage Investors who brought the suit, was the trustees not the beneficiaries.</p>
<p>The Marshall decision cited by the defendants in the court below, in fact seemed to imply or at least it can be read to imply that even with regard to a corporation, it is the directors and officers whose citizenship governs.</p>
<p>I'll be the first to admit that the language in that decision is not clear when the -- this Court created a conclusive presumption that a corporation has its citizenship for diversity purposes in the State of its incorporation.</p>
<p>It was not clear whether the Court was presuming citizenship of the directors and officers on the one hand or whether it was presuming the citizenship of the shareholders on the other, I believe it can be read either way, but if it is read in the former, that is entirely consistent with -- with all of the analysis that we're suggesting to the Court.</p>
<p>We think that the analysis that we are requesting the Court to adopt is consistent and supportive of the basic purpose of diversity jurisdiction.</p>
<p>The -- the beneficial shareholders in this case will not be revealed or participate or revealed to the parties or -- excuse me, to the Court or to the jury, nor will they participate as plaintiffs in the lawsuit.</p>
<p>It is not realistic we think to hold that they are really the parties to this lawsuit, that they are really the parities whose citizenship governs the diversity jurisdiction.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Did they have anything to say about whether the lawsuits should be brought?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: They have nothing whatsoever to say, Your Honor.</p>
<p>Under the trust document, they have not right to participate in that decision.</p>
<p>It's the trustees alone who may do that.</p>
<p>The rule that we are suggesting is a simple and realistic approach.</p>
<p>It requires no analysis of the birth naturalization and domicile of those 9500 people who are uninvolved in this transaction and in this litigation.</p>
<p>We submit then, the Court of Appeals was correct, but if we have a -- a second position that I would brief -- briefly mention Your Honors and that is this.</p>
<p>That if the metaphysical question is decided that this way that it really is the 9500 share who -- holders who are the real patties here and who should have sued or who should be the parties, the three plaintiff individuals who are beneficial shareholders, alternatively brought this action as representatives of all of the other shareholders.</p>
<p>Rule 23.2 of the Federal Rules, specifically provides that as an alternative method for -- for creating diversity jurisdiction, when it is an unincorporated association.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Mr. Ellis, do the members of the beneficiaries have any rights as individuals?</p>
<p>Isn't the right if it exist, the right in the entity?</p>
<p>I mean, how can you have this a class action in that way?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: Well, Your Honor, we -- we do not agree that the rights of the individual shareholders are the rights that issue in this lawsuit.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Then it's not a -- then it can't be a class action on their behalf, can it?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: That's correct.</p>
<p>It cannot be.</p>
<p>If -- if our assumption is correct.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Then is the merit -- then is the merit to your alternative argument.</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: Well, it is our alternative argument.</p>
<p>Our primary argument is that it is the trustees whose citizenship governs.</p>
<p>It is the trustees who are the real parties.</p>
<p>Our alternative --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: (Voice Overlap) it wouldn't be your alternative argument, is that it?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: Well, Your Honor, we were surprised when this case was dismissed, that is our alternatives argument, we think our major argument is the -- is the proper position to take in the case.</p>
<p>In --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: (Voice Overlap) that the question --</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: Again that is another alternative argument that we have and that is that the Court of Appeals failed -- excuse me.</p>
<p>The -- the trial court failed to -- to develop the record or to allow any development of the record, before it decided that there was no federal question in the case.</p>
<p>The Court of Appeals did not make any determination of the propriety of that and we would merely say that if the Court should conclude here that there is no diversity of citizenship jurisdiction in this case, the case should at least be remanded to the Fifth Circuit for determination of the federal question.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: And then -- and then what?</p>
<p>Where there's --</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: If the Fifth Circuit determines that there is a federal question alleged in the case, then it should remand the case for trial and development of that federal question.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: On what, on what, on the federal question or on some pendent issue?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: It should remand it for a trial on the -- on the issue of which it has jurisdiction namely, the federal question jurisdiction, but of course it also has pendent jurisdiction in that instance to all causes of action arising out of the same circumstances.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: But the issue -- the -- the thing you want tried is really a pendent issue, isn't it?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: If pendent to the federal claim, that's correct.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: And so it's not a -- there's some discretion as to whether it was -- to whether -- to entertain it.</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: I don't believe there is discretion.</p>
<p>If the Court has jurisdiction, it must entertain it.</p>
<p>If it --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: What -- what, a jurisdiction over the federal question and therefore, you must entertain pendent issue?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: I believe that that is correct, that the Court does have pendent jurisdiction over --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: I -- I -- yes, you have it -- you have it, if you want to exercise it.</p>
<p>Do you think there some -- some requirement of it?</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: I thought (Inaudible) said to the contrary?</p>
<!-- James_A_Ellis_Jr--><p><b>Mr. James A. Ellis, Jr.</b>: Your Honor, and you may be correct on that.</p>
<p>I -- I'm not familiar with that case at this time.</p>
<p>In conclusion, we would merely urge the Court to affirm the Fifth Circuit.</p>
<p>We think the reasoning there is proper, correct and practical and reaches a just conclusion.</p>
<p>Thank you.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Mr. Fischman, do you have anything further?</p>
<p>Rebuttal of Bernus Wm. Fischman</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: Thank you, Mr. Chief Justice and may it please the Court.</p>
<p>It would seem that the -- the primary question that's developed here is exactly what it Fidelity Mortgage Investors, is it an entity?</p>
<p>Is it an unincorporated association?</p>
<p>Is it an aggregation of individual or just what?</p>
<p>The -- the entity is in fact, an unincorporated business association.</p>
<p>It is not a trust in the traditional sense of an express trust.</p>
<p>It may call itself one, but if one reads -- reads carefully, the declaration of trust in this case, one could find that this entity can be almost anything it wants to be because, for example, in -- as pointed out in the declaration of trust which is in the appendix to the briefs.</p>
<p>The -- the trust can delegate or that excuse me, the trustees have the power to delegate their authority to anyone of their membership -- anyone of the trustees --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, that maybe so but -- but short of that, what power does an individual member have?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: The same power, Mr. Justice is that --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Is that to vote out the trustees?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: Precisely the same power which the shareholders of the corporation have and that is by whatever the appropriate majority is to vote out the people that are either defending a lawsuit that they would like compromised or to compel the institution of a lawsuit that they want.</p>
<p>There is absolutely no difference in terms of the economic functions of a real estate investment trust and the modern corporation or for that matter a limited partnership or general partnership such as a joint-stock association.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: But a corporation is a plaintiff or the -- or defendant regardless of who its shareholders or directors, or officers are --</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: Precisely, Mr. Justice.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: -- corporation, that's a party.</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: Only by active -- by originally by judicial fiat of this Court by creating --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: And now, by a statute?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: And now by a statute.</p>
<p>Our whole point is centered on the fact that this might be a wonderful argument.</p>
<p>It might be just an absolutely magnificent idea for real estate investment trust to have access to a federal form, but it's up to Congress to make that determination as this Court has aptly determined in the Bouligny case.</p>
<p>I would think --</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: You should think there is a fundamental difference between a labor union and all the other categories we've been talking about?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: Only in the sense that the labor union is not organized in the ultimate sense for a financial profit, but it does have as its goal, the distribution of benefits to its membership.</p>
<p>It is ongoing.</p>
<p>It has business.</p>
<p>It has officers.</p>
<p>It has members who control ultimately the decisions of its managers, its presidents, its stewards.</p>
<p>So in that sense, there really is no real difference.</p>
<p>I think if the Court here extends diversity jurisdiction in effect and expands it to accommodate the Massachusetts business trust, you create an infinite possibility for deceptive practices if you will, to create jurisdiction.</p>
<p>I think that is as clearly an issue which the Court will have to confront.</p>
<p>And I would point out to the Court that this -- that this particular lawsuit was not originally commenced in the Federal District Court in the Northern District of Texas.</p>
<p>It was commenced in the State District Court in Dallas, Texas.</p>
<p>And only when a plea of privilege was sustained to transferring this case to the county in which Navarro has its headquarters, was the suit dropped and refiled in the Northern District.</p>
<p>So, some of the argument that there is the local prejudice doesn't completely reign through.</p>
<p>It was the particular forum within the State of Texas that the -- that the respondents were seeking to -- to invoke.</p>
<p>Now, this Court must consider the Marshall versus Baltimore & Ohio Railroad case, where it was simply stated that in creating this fiction, we're not going to disregard the fact that the corporators and those were in fact the people who were referred to in that opinion, I -- I can understand counsel's confusion with that term with the corporators as used in that -- that somewhat quaint or antiquated language, simply means the shareholders of the corporation where the ones whose residents would be looked to, to determine citizenship for diversity purposes.</p>
<p>I would respectfully submit to the Court that you must in order to hold there is diversity jurisdiction in this case.</p>
<p>You must overrule Marshall versus Baltimore & Ohio Railroad.</p>
<p>You must implicitly overrule Bouligny and the cases which are in its antecedents.</p>
<p>And I think you will do so with all the attendant risk that you will increase the -- the litigation which will be filed in federal forms as a direct result of that -- of that holding.</p>
<p>I would also respectfully point out to the Court that the -- in this particular case, for example, it and -- of course it doesn't appear particularly from the record one way or the other, whether all of the trustees of the Massachusetts business trust are before the Court, but it should be pointed out that there is no requirement under the argument which respondents advanced that all of the trustees be before the Court.</p>
<p>Supposing, for example, they had several trustees who were residents of the State of Texas, it would be rather convenient to simply ignore their existence and bring the -- the action in the name of only those trustees who were non-Texas residence.</p>
<p>And there is nothing in what the respondents argue that would make that in effect, a collusive joinder to confer jurisdiction.</p>
<p>It's simply an omission to bring forward those parties who would in effect, destroy the diversity jurisdiction of the federal court.</p>
<p>The -- the trust cases, the express trust cases Dodge versus Tulleys, first, as we pointed out, we believe, we respectfully submit, are distinguishable, an express trust in the sense of a mortgage indenture or in the case of Dodge versus Tulleys or -- excuse me, Bullard versus City of Cisco, you had a bondholders committee.</p>
<p>But that bondholders committee was organized for one limited purpose and also, all of the shareholders, a close reading of the case, says that the persons who elected to join with the bondholders committee, number one, had citizenship diverse from all of the -- the defendants, that was the first point.</p>
<p>Moreover, all of those bondholders who contributed their bonds to the committee --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: If decisions are raised on this agreement, give to the trustee's right to file a suit?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: Unquestionably, Mr. Justice.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Well, how do you retain that that be given away?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: By simply voting out the trustees, Mr. Justice.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: What I mean, how can you file a lawsuit?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: I don't follow the Court's question.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Yes, you delegated the trustees the right to control, to sue and what have you.</p>
<p>Why do you now have the right to be in a lawsuit?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: You mean as individuals?</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Yes.</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: Because the delegation is merely the creature of those parties.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Well, what action have you done --</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: It doesn't --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: -- to withdraw that delegation?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: Because in -- we're obtaining --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Have you withdrawn it yet?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: They have not because --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: (Voice Overlap) --</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: -- they have not, but they ultimately as the true parties and interest, if that is indeed the appropriate analysis at all, have that power simply by removing those trustees.</p>
<p>Totally --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: They haven't done it.</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: No, that's true.</p>
<p>They have not in this case.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: What else can you --</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: But --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: -- tell me about this one?</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: I understand it, Mr. Justice Marshall, but I believe that the point is that they may do it in -- in positing that power in the shareholders, you make them no different than the shareholders of a corporation.</p>
<p>But the only reason that a shareholder of a corporation -- it was not a party and --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: And there's another difference.</p>
<p>A corporation has a state statute declaring it to be a corporation and given it the right to sue and be sued.</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: But I would --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: And you don't have that.</p>
<!-- Bernus_Wm_Fischman--><p><b>Mr. Bernus Wm. Fischman</b>: I would respectfully submit that that means that you then refer the federal court to the law of the States to determine federal jurisdiction, which I don't believe this Court has ever held, was properly the function of the federal form.</p>
<p>The -- the -- it is pointed out in the Carlsberg case that jurisdiction has to appear from the record itself.</p>
<p>It has to be there to begin with.</p>
<p>Under -- under that particular argument, the only reason that a corporation has, if you will, a birth certificate, is because the State gave it one.</p>
<p>That's fine.</p>
<p>But that is -- does not change the ultimate fact that the corporation metaphysically exist only in the contemplation of the law.</p>
<p>It doesn't exist.</p>
<p>I can't reach out and touch the corporation.</p>
<p>I can only reach out and touch individuals who own property and who have some conflict with my client.</p>
<p>What I cannot see is any difference between that type of entity and the corporation.</p>
<p>It's the same thing.</p>
<p>And the only thing that gives a corporation the right to be there is because originally, a court-created fiction and then ultimately, an Act of Congress.</p>
<p>Thank you, Your Honor.</p>
<p>Thank you, gentlemen.</p>
<p>The case is submitted.</p>
<p>We'll hear arguments next in --</p>
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Thu, 13 Sep 2012 22:04:02 +000081960 at http://www.oyez.orgCrist v. Bretz - Oral Argumenthttp://www.oyez.org/cases/1970-1979/1977/1977_76_1200/argument
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<a href="/cases/1970-1979/1977/1977_76_1200">Crist v. Bretz</a> </div>
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<p>Argument of Robert S. Keller</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: We will hear arguments first this morning in 76-1200, Crist against Cline and Bretz.</p>
<p>Mr. Keller, you may proceed whenever you are ready.</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Mr. Chief Justice and members of the Court.</p>
<p>Jurisdiction has been reserved in this case, a double jeopardy case proceeding out of Montana.</p>
<p>We are proceeding under the provisions of 28 United States Code 1254 (2).</p>
<p>The Ninth Circuit Court of Appeals in effect held that Montana Statute 95-1711 taken from the model penal code was unconstitutional.</p>
<p>1711 permits a retrial if the first trial has been terminated before the first witness is sworn as distinguished from the federal rule that when the jury is empaneled and sworn.</p>
<p>Some of the facts in the case that give rise to the jurisdiction of the Court, this proceeded in 1974, a nine count information against Bretz and Cline and Mrs. Cline, and she is not relevant to this appeal.</p>
<p>One of the counts and one of the gut counts was obtaining money by false pretenses alleged to have occurred between January and February of 1974.</p>
<p>After the jury was empaneled and sworn the defendants moved, made several motions, but a motion in limine to confine the state to the confines of the information, January to February of 1974 and unfortunately a typographical error, it should have been January 1973 to February 1974.</p>
<p>It put the trial judge in a dilemma for two reasons.</p>
<p>The state moved to amend to correct the error and I bring this up because Justice Tuttle in the Ninth Circuit commented that this is simply a formal defect.</p>
<p>The trial judge was in this dilemma; to permit the amendment meant we were talking an additional year of time against which the defendant had to defend at the last minute.</p>
<p>Secondly, in 1973 the Montana legislature enacted a comprehensive sweeping Montana Criminal Code of 1973 that repealed all preexisting substantive law effective January 1, 1974.</p>
<p>So in essence, they were going to Court on this particular count, there were three counts, but this particular one on an offense that had been repealed before it was alleged to have been committed.</p>
<p>So the Trial Court was in a real dilemma and sua sponte dismissed the three counts that had the typographical error.</p>
<p>The state as I indicated had moved to amend, and this had been strenuously objected to by the defendants and that is when the Court sua sponte dismissed.</p>
<p>They then dismissed the remaining six counts.</p>
<p>The state that of its own motion re filed a new information, corrected the defect and filed a two count information.</p>
<p>The first count was grand larceny and it tracked one of the six counts that the state had moved to dismiss of its own motion and the second count was obtaining money by false pretenses with the typographical error corrected and the jury found, there was a new trial, and the jury found the defendants guilty of this obtaining money by false pretenses, one of the counts had the typographical error.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Mr. Keller, we postponed the question of whether or not we have a appellate jurisdiction over this case until the argument in the matter rather than noting probable jurisdiction.</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Yes, sir.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: I gather that your opponent, the appellee does now concedes that there is an appellate jurisdiction, a new kind of thing so you do not discuss it in your brief.(Voice Overlap)</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: It is the jurisdiction, that is correct Your Honor, and ordinarily I would say that, that is my position, that you are correct except that in one of the appellees' briefs, the Bretz brief, they contest our jurisdiction saying that we did not address the question and so I felt that under the rules I had to address it both in the opening shot in my brief and in opening shot in oral argument.</p>
<p>If we are all satisfied in the jurisdiction, and I want to assure the Court that I am satisfied that we are under 1254 (2), I would be glad to go on to the --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Because the Court of Appeals has held invalid the statute at the state of Montana?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: That is correct.</p>
<p>It never came right out and said 1711 is unconstitutional.</p>
<p>It just said the Montana Supreme Court which was interpreting that statute was wrong and the effect of it is that it is unconstitutional.</p>
<p>Our statute from the model penal code specifically says that jeopardy in essence has not attached and can have a retrial up until the time the first witness is sworn and the federal rule except in the federal system is at the time that the jury is empaneled and sworn.</p>
<p>So our statute is unconstitutional.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: But it is a sufficiently clear holding that your statute is unconstitutional?</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Mr. Keller, your statute does not say there can be a trial up till the time the witness is worn.</p>
<p>It says there shall not be a trial after the witness is sworn?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: That is correct.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: So the statute literally, it does not do that it is not unconstitutional, is it?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: On Supreme Court interpretation in State against Cunningham which was just prior to Bretz, says just exactly what I have said.</p>
<p>The time that jeopardy attaches in Montana is at the time the first witness is sworn, they are construing 95-1711, Mr. Justice Stevens.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Do you think it is then the statute that permits it.</p>
<p>Well, I still have some difficulty.</p>
<p>I can understand that is the rule in Montana, but I am not quite sure that there is a statute that is unconstitutional?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Well, if our statute permits a retrial on a termination of a case prior to the swearing of the first witness, but after the jury is empaneled and sworn, then we have a direct conflict with the federal system.</p>
<p>Our Montana Supreme Court in the Cunningham case held just exactly that, that this is no bar to a retrial when the Cunningham case was dismissed after the jury was empaneled and sworn and before the first witness is sworn.</p>
<p>I have to use Cunningham and I am sure you are familiar with it the briefs because it was a part of the consolidated petition for Writ of Habeas Corpus that lead to where we are now in this case.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: What I am trying to suggest is that perhaps the legislature could have repealed the statute, so you did not have a statute on the books and the Montana Supreme Court might nevertheless had made precisely the same holding, then there would not be any – just say it is a matter of Montana law, jeopardy does not attach till the witness is sworn.</p>
<p>I do not think you would have an unconstitutional statute then.</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: I see your point, yes.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: You have to argue that by implication when the Montana statute says retrial may be had -- may not be had under certain circumstances, yet impliedly authorizes retrial under the circumstances where it does not prohibit it?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Exactly.</p>
<p>You said do we have to argue, that is our position, yes, and it is -- the point that we are here on today was addressed head on and directly in the Cunningham case.</p>
<p>When appellee’s petition for a writ to the Montana Supreme Court, that was summarily denied citing the Cunningham case and it comes directly to this point and puts us in a conflict that we are.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: So that is the meaning of your statute as authoritatively construed by the highest Court of your state?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Correct, yes sir.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Alright.</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Going directed and passed that to the argument itself.</p>
<p>We agree that the double jeopardy prohibition in the Fifth Amendment affects both under the federal system and the state system, we do not have any quarrel with that.</p>
<p>We agree that there is a point in time in which jeopardy does attach and the reason that we are here is that we do not with the point in time that has been set forth.</p>
<p>So the question that we have for the Court is this the point in time selected in the federal system, at the time that jury is empaneled and sworn mandated by the constitution.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Mr. Keller, let me, before you get too deeply into this, do I understand that Cline has wanted a reversal of his conviction?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Yes sir, after the petition for --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Is not the case moot as to him then?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: I do not really think so, and I do not know this.</p>
<p>My opponent, Mr. Leaphart represents him and was there for the trial and it may well be that it is not moot.</p>
<p>I never raised it and I did not raise it because it is conceivable that the adamant reversal by the Montana Supreme Court may permit him to be retried anyhow.</p>
<p>They are the ones on his appeal that reverse and set aside the conviction.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: (Inaudible) they are not going to dismiss it?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: I not know that.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: It seems to me he wants everything in the state appeal that he could possibly get in habeas?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: I want to say this is the one entrusted with the prosecution.</p>
<p>We do not intend to re prosecute in that case, but I do not know whether it is moot or not.</p>
<p>The position of both Cline and Bretz were identical and it made no difference to me if Cline came along or did not came along.</p>
<p>The issue is there and it is certainly there with Bretz, so I did not explore it at all.</p>
<p>It was raised for the first time by Solicitor General in his brief, in this Court.</p>
<p>As a little bit of background, the Attorney General’s office in the State of Montana is brand new to all of us as of January this year and none of us was there when this all took place.</p>
<p>Both accounts where the appellees were there throughout at all so they could probably more properly answer that.</p>
<p>The first question that we have, is this point in time selected in the federal system mandated by the constitution?</p>
<p>The ancillary question is if it is not, do we still have to follow it in our state under the doctrine of incorporation.</p>
<p>Historically and this is conceded in appellee’s brief that the common law jeopardy was not a problem until there had been a conviction or an acquittal and at the time of the drafting the constitution this was a state of the common law.</p>
<p>I have looked frankly, for the source of the federal rule that it commences at the time that the jury is empaneled and sworn and the closest that I can come to any suggestions to you is, there was a real problem for government appeals up until the Criminal Appeals Act of 1907.</p>
<p>The language in the Criminal Appeals Act was such that it permitted a writ of error to be pursued inter alia from the decision or a judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy.</p>
<p>But we do not know when that point was as such.</p>
<p>The general rule at that time in the text books, encyclopedias was at the time the jury had been empaneled and sworn, but the minority view gave a distinction of after conviction of acquittal.</p>
<p>There was a dichotomy that gave nothing in between.</p>
<p>So the point that we are raising now had really never been touched then.</p>
<p>The other suggestion that I have is going far back to Perez in 1824, which we have always contemplated as being the start of manifest necessity and if you read it and as you will recall, and I am sure you do from the yesterday’s argument, this was a case with a hung jury so all the evidence that was in the case was all over, and Justice Storey in a terse opinion is faced with the dilemma, what are you going to do when the jury – you have got a jury and you cannot get rid of it.</p>
<p>You got to do something and somehow, as you read that opinion, in essence it says, giving rise to manifest necessity after the jury is there and it cannot arrive at something, there is a manifest necessity or to meet the end of justice.</p>
<p>From that I have to assume that and as you all know we had a pretty liberal interpretation for a long time of what is manifest necessity, I have to believe that nobody worried about what occurred after the jury was empaneled and sworn and that just gradually evolved this cut off point.</p>
<p>It never was a problem.</p>
<p>As such this Court never even addressed until 1963 and that was in Downum, so we got a long period of time before the issue even comes up.</p>
<p>Downum was not only handled as a manifest necessity case, the issue I am raising was not raised and it was a federal case to boot.</p>
<p>So nobody questioned when Downum just simply came out and said jeopardy attaches when the jury is sworn -- empaneled and sworn in a jury case.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Of course it was not until 1969 that this question could have possibly risen, it was not until then in the Benton case where the double jeopardy protection after the (Voice Overlap) goes to the states.</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Goes to the states, exactly, and that is the first time it really came to a confrontation.</p>
<p>Somerville against Illinois in 1973 and that is a state case, but unfortunately for our position, it is a state that has identical, the same rule as the federal rule.</p>
<p>So Justice Tuttle comments in his opinion, that there was not a shred of evidence that this distinction made a difference to this Court in his opinion in 1973, and I submit I do not know of any reason why it had been raised.</p>
<p>I do not know why Illinois would raise it.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Mr. Keller, you said you made an effort to find the origin and history of the federal rule of point being when the jury is empaneled and sworn, what is the history of your statute in your state, do you know?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: It was adapted in 1969, as my recollection of it judge.</p>
<p>It came out of the model penal code and there was a tentative draft in 1956, and a final draft in 1962.</p>
<p>The tentative draft in 1956 has just this terse comment, they see no difference between a jury and a non-jury for the point that jeopardy attaches and nothing better than that, but at least it explains why they did it, but nothing behind it.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Do you know what other states or how many other states if any?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: I know only two for sure and I do not know the others.</p>
<p>We tried to research for that in point and ran into a quagmire.</p>
<p>I know that Kentucky has from the modal penal code, Arizona did and I do not know if they still do.</p>
<p>New York did and they just now held their own statute unconstitutional following the federal rules, so I do not know if I want to cite that as an authority and honestly Pennsylvania had something comparable to open up from the penal code and beyond that, no I do not know.</p>
<p>One of the reasons for it is, in going through the state statutes, the way this thing is drafted, you have to look for a negative, you cannot find something as to when there is jeopardy attached.</p>
<p>You have to go read several statutes to come back to find out what it does mean in that state, but I do not know for sure that there are two others along with us today that have it, Kentucky and Arizona.</p>
<p>The Somerville case in any event followed Downum and just said without giving a reason and I am sure you noted in the brief we have emphasized this throughout, never has there been a reason given for the rule that had been followed the in the Federal Court and there was no as you pointed out, no reason to question until Benton, but the language in Serfass in 1975 is significant to us and I do not want to be out of line of trying to quote something that was said that is out of context, but the defense has relied upon Serfass because it followed Somerville and it followed Downum.</p>
<p>We rely upon it because now for the first time, the Court has really looked at the point at which jeopardy attaches and as you recall in the Serfass, this was a point in time prior to even having the jury empaneled so the comments are somewhat relevant, but I do not want to take advantage of them.</p>
<p>Nevertheless, eight of you concurred on this opinion and this is what we read from it.</p>
<p>As an aid to the decision of cases in which the prohibition of the double jeopardy clause has been invoked, the Courts have found it useful to define a point in criminal proceedings at which the constitutional purposes and policies are implicated by a resort to the concept of attachment of jeopardy and goes on to say in a jury case, it is when the jury is empaneled and sworn and in a non jury, when the first witness is sworn.</p>
<p>The Court has consistently adhered to the view that jeopardy does not attach and the constitutional prohibition can have no application until a defendant is put to trial before the trier of the facts whether the trier be a jury or a judge.</p>
<p>The constitutional policies underpinning the Fifth Amendment’s guarantee are not implicated before that point in the proceedings at which jeopardy attaches.</p>
<p>As we have noted above, the Court has consistently adhered to the view that jeopardy does not attach until a defendant is put to trial before the trier of the facts.</p>
<p>This is by no means a mere technicality, nor is it a rigid mechanical rule.</p>
<p>It is of course like most legal rules an attempt to impart content to an abstraction and you can appreciate why we like this language.</p>
<p>Without risk of a determination of guilt, jeopardy does not attach and neither on appeal nor further prosecution constitutes double jeopardy and that is specifically our point.</p>
<p>We take the position that as a matter of law, no jeopardy attaches until a witness says something incriminating.</p>
<p>If at the time the jury was empaneled and sworn, the prosecution rested as a matter of law, the case would have to be dismissed.</p>
<p>If at the time that the first witness is sworn, the prosecution rested, the case as a matter of law, the would have to be dismissed.</p>
<p>It really means that in terms of when jeopardy attaches, that it varies with each case.</p>
<p>The first witness in a homicide may be a pathologist.</p>
<p>He does not have anything to do with guilt.</p>
<p>He just wants to identify the corpus delicti.</p>
<p>So somewhere in there, there is a risk of determination of guilt.</p>
<p>Our position is that our point in time is sooner than jeopardy actually attaches and the federal system is even sooner than our point in time and it is an aid to the Court just exactly as Serfass said that it was, this is an aid to the Court that we use.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: If we were to follow or adopt your reasoning on this point, it would not change the rule in the Federal system, would it?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: I think that it would.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: You are saying that as a matter of constitutional law, your concept of jeopardy is part of the bill of rights and incorporates the double jeopardy clause and that it would be applicable both in the federal and the state system?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: That is correct.</p>
<p>The only reason I answer your question in front of this is the Criminal Appeals Act in essence permits the government to proceed before jeopardy attaches.</p>
<p>It does not have a cut off day such as ours does.</p>
<p>Ours is prior to the first witness being sworn, yours is in the language before jeopardy attaches.</p>
<p>It has been assumed, I have to believe that this has always been when the jury was empaneled and sworn.</p>
<p>If this Court now adopts our rationale, I have to assume that the government would be able to proceed in a federal case up to at least the time the first witness is sworn.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: But you would also be assuming, would you not that when Benton v. Maryland said that double jeopardy was incorporated into the Fourteenth Amendment, it meant all the bag and baggage of the federal prohibition rather than just the general outline of it?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Yes, I understand that is a view that has been espoused.</p>
<p>I do not support the view.</p>
<p>No.</p>
<p>I believe that that said that we have the double jeopardy prohibition under the Fourteenth, just as you do in the federal system, but I do not believe that that means we have to take the rules as Justice Tuttle puts it, the supervisory rules of the Court as a constitutional mandate so we have to take the double jeopardy prohibition as a fundamental guarantee under Benton, but I do not think it means we have to take the rules that went along.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Therefore, it is conceivable at least is it not in line with my brother Rehnquist's question that the Court might hold that the constitution tolerates the Montana rule without at the same time holding that it requires the federal rule to be the same.</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Yes.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: In other words, the Court has held that the guarantee of a jury trial under the federal constitution guarantees a 12 member jury in federal cases, but tolerates a smaller jury in state cases, state criminal cases?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: I am with you.</p>
<p>My problem in answering your question is I was a step ahead, my colleague already posed the same questions.</p>
<p>We are getting ready for this so we had gone one step further and expect some enterprising government lawyer to bring one up if you go our way.</p>
<p>That is after the jury is empaneled and sworn and before the first witness is sworn and within our limited knowledge, I do not know how to stop him so I just really was not answering your question.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: What do you suggest happens significantly between the empaneling of the jury and the swearing of the first witness?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Nothing.</p>
<p>And I mean, I was -- I went to a matter of law and as a matter of practice nothing significant happened.</p>
<p>As a matter of practice, the federal district judges in our state just before they swear that jury, now we hear everything that has to be heard and get rid of these motions because under the federal system, once the jury is sworn, we start.</p>
<p>In the state level, we have until that first witness is sworn to get rid and dispose of all these things.</p>
<p>As a matter of practice, nothing can be done to that jury, as a matter of law within those two periods of time that can have an effect upon the defendant.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: What about the opening statement to the prosecution?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: He can do that, but what does that do in terms of a jeopardy?</p>
<p>Statements of counsel are not --</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: My question to your point is that nothing happens?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: I see, of course.</p>
<p>Things can occur.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Could between opening statement -- that an opening statement may have an impact?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Certainly it might, but if you do not go further and that jeopardy did not attach because that is statement of counsel.</p>
<p>Yes, you certainly can have opening statements.</p>
<p>In fact, it is what made this particular case almost ingenious.</p>
<p>In using both the blending of the federal and the state rule, they were able to make their motion in limine after the jury was empaneled and sworn which in the federal system, they would have had to make it before the jury was paneled and sworn.</p>
<p>They made it between the two periods of time.</p>
<p>The last thing they wanted was a motion to dismiss.</p>
<p>That puts them in real disadvantage, so when they make the motion, that they made in the manner that they made it, truly was in ingenious because they have got jeopardy attaching under the federal rule and they still can make their motion in limine before they have commenced under the state rule.</p>
<p>I really looked for a basis for this and the only thing that I can find that is, I really do not want to use the word weakness in our position, but that is I guess for lack of a better phrase, the weakness, the only weakness I can come to is the valued right concept and the valued right concept has been espoused.</p>
<p>It has been espoused by members of this Court as recently as 1973.</p>
<p>I want to submit that the valued right is the valued right to get the case tried as distinguished from the valued right to this particular jury.</p>
<p>In fact, if you take the position that it is a valued right to this particular tribunal then somehow that puts this Court in a position of saying the defendant has a constitutional right to a defect in the system.</p>
<p>The only way that you can have a jury that is not impartial is because of a defect in the selection.</p>
<p>The whole process is geared to an impartial jury.</p>
<p>Now, all of us know as trial lawyers, you can have a good or bad jury.</p>
<p>You can have a feeling that you have a good or bad jury, but that is not quite the same thing as the United States Supreme Court espousing that you have a constitutional right to a defect in the system to a good or bad jury.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Is that a fair statement of their argument, could you not have phrased it just the other way that the defendant might be convinced that he has a good and impartial fair jury, but the prosecutor wants to have 12 more preemptory channels so he dismisses the prosecutor's, let us try and get a better jury from the prosecutor’s standpoint?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Now, you are talking prosecutory manipulation, Justice Stevens and that was met head on by Justice Haswell in the Montana Supreme Court.</p>
<p>If what you are talking about is prosecutory manipulation, that makes no difference whether the jury has been empaneled and sworn or the first witness is sworn.</p>
<p>If I as a prosecutor can manipulate to get to this point, I can ask for my dismissal before you swear the jury.</p>
<p>So the point that they are raising does not really get to the difference in point of time.</p>
<p>This time, to do the prosecutory manipulation is just as valid in the federal system as it is in the state system.</p>
<p>We first have to assume the prosecutor is manipulating, but the trial judge has not caught it and he can do it just as effectively in the federal system as they are suggesting it can be done in the state system.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Immediately before the jury is sworn and you know who the jurors will be?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Exactly and you just exhausted it all and you know right then this does not look like a hang man’s jury, maybe we better get rid of it and try 12 more and that point in time is just as valid before you swear that jury as it is when the first witness is sworn.</p>
<p>I really think the valued right concept and it was expressed as policies underpinning in one of your opinions Justice White.</p>
<p>This point go both to speedy trial and double jeopardy and the right as such is the right to get the case tried and – but it does not put the valued right to get the case tried right now, quite in the point of a constitutional right.</p>
<p>It certainly is a constitutional right under speedy trial and there is overtones from that in this situation, but that puts us back to the question of what kind of passage of time are we talking about, as between just before the jury is sworn and just before the first witness is sworn.</p>
<p>I would like to reserve the remainder of my time.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Let me ask you before you sit down, you in your brief seem have to abandoned the notion, the argument on manifest necessity.</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Yes sir.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Let us assume you are wrong on your thought that it is not properly here.</p>
<p>It is not properly subject to appellate jurisdiction here.</p>
<p>Assume you are wrong on that, do you mean -- would you mean to abandon it or not?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Yes, sir, intellectual honesty compels me to answer yes.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Under what, under what case?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Under what case?</p>
<!-- unk--><p><b> Unknown Speaker</b>: Why do you abandon it?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Because our whole thrust is the Montana statute when we came into taking over this prosecution.</p>
<p>I think that the manifest necessity was raised for the first time by the federal district judge Batton when this case was heard and I do not -- in my mind, I do not believe that the state even raised it at the outset.</p>
<!-- unk--><p><b> Unknown Speaker</b>: So you do not think it has ever been presented to the Montana Supreme Court?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: It has not, no.</p>
<!-- unk--><p><b> Unknown Speaker</b>: So there has been no or is there any necessity for that?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: You mean necessity for raising to the Montana Supreme Court?</p>
<!-- unk--><p><b> Unknown Speaker</b>: In a federal habeas corpus proceeding, is there any necessity for you to in order to argue manifest necessity to have it gone through the state system?</p>
<p>There is a requirement for exhaustion on the state, is it not?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: That is right.</p>
<p>I do not no, there is no requirement of state.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Well then why do you say that the manifest necessity is not properly here?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: I had two reasons frankly and the one is the one that I gave.</p>
<p>I think from the outset, the state has taken the position prior to my time that they are concerned about the statute in this point in time.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Well, if you just did not want to raise it, that may be so, but what if you lose on the statute?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Then I lost.</p>
<!-- unk--><p><b> Unknown Speaker</b>: And you do not want us to consider?</p>
<p>You do not want that issue of manifest necessity adjudicated here, is that it?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: That is correct.</p>
<p>That is the second point.</p>
<p>I think that we are grossly weak on manifest necessity.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: Because that is ultimately a decision for this Court, not for you?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Well, I did not intend to pursue it.</p>
<!-- unk--><p><b> Unknown Speaker</b>: So you do not think it is worth anything under Lee, did you read the Lee case?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Yes sir.</p>
<!-- unk--><p><b> Unknown Speaker</b>: You do not think it is worth anything under Lee?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: We were asked by the Solicitor General to move for continuance before we had to first file anything so that Lee could come down in time before we got Truman before even we presented our brief and at that time made a decision we were going to proceed on the issue that we felt was there from the outset and not manifest necessity so our brief was in before the opinion came down on Lee.</p>
<p>Now, I summarized a lot of things, but we had a pretty in depth discussion with the Solicitor General and the facts in our case and all I can say is that was also a factor in deciding not to --</p>
<!-- unk--><p><b> Unknown Speaker</b>: He does not seem to agree with you it is such a weak point?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: I have to concur with some of the points made by counsel for Bretz.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Because he would sustain – he would think that there was manifest necessity if the merits are reached here?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: I do not think he has the right facts in this case, Justice White and I concur with Bretz counsel in that point.</p>
<!-- unk--><p><b> Unknown Speaker</b>: We have got enough issues without reaching for one?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Thank you.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Mr. Leaphart?</p>
<p>Argument of W. William Leaphart</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Mr. Chief Justice and may it please the Court.</p>
<p>The issue of mootness has been raised so I will direct myself to that initially.</p>
<p>The Solicitor General in his brief in a footnote on page 5 has noted the fact that Mr. Cline’s conviction was reversed by the Montana Supreme Court and the Solicitor expresses his opinion that Mr. Cline has received all the relief that the writ of habeas of corpus can provide.</p>
<p>I suggest to the Court that that assertion assumes that the writ of habeas corpus statute can do nothing more than affect the release of a man prison and I would direct the Court’s attention to this Court’s opinion and Carafas v. Lavallee, 391 US, 234 in which this issue of mootness was answered.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: In the court after that I think you left out one point, the Court not only reversed, but also dismissed the charges?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: That is correct Your Honor.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: It is a little different from just a reversal?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Well, I have no quarrel if the charges were dismissed.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: What can the State do after that, under this non kind of State Law?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: I maintain Your Honor that --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: What can Montana do as to these charges against this man after the Supreme Court of Montana dismisses them?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Your Honor at the first trial that we are talking about, that was aborted, there were nine counts.</p>
<p>The State voluntarily dismissed one.</p>
<p>The judge on his own motion dismissed three more and then the prosecution came in and dismissed the remaining counts.</p>
<p>It came back and filed a two count information.</p>
<p>We went to trial on that.</p>
<p>It is my position that Mr. Cline still has a very vested interest and the determination as to whether or not jeopardy attached at that first trial.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Even if they cannot try them again, even if they do not try him again?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Well, Mr. Cline right now is depending this appeal.</p>
<p>He has been named by the State as an FLE.</p>
<p>It is Mr. Keller’s representation today that they do not intend to further pursue the matter.</p>
<p>It is the first that I have ever heard of that.</p>
<p>As his counsel I have to you assume that since they are prosecuting the appeal that they intend to pursue the matter.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: But you still have not told me how they can?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: What I am saying Your Honor is that there still are five counts remaining from that first prosecution that if jeopardy had not attached, conceivably the State can come in and charge him on those five counts.</p>
<p>They only filed two counts the second time.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: So the conviction is only reversed on two counts?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: That is correct.</p>
<p>We still have a five accounts that are kind of hanging there.</p>
<!-- unk--><p><b> Unknown Speaker</b>: But as it stands right now, he is clean with the State and there is no charges pending against him?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: That is correct.</p>
<!-- unk--><p><b> Unknown Speaker</b>: And there is no lingering consequences from his conviction?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: That is correct.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: And I thought you said the charges were dismissed by the Court?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: True Your Honor.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Well, can they be retried?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: No.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Well, where are these counts that they can retry?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: We got two separate trials that we are talking about.</p>
<p>We started out with a nine count information which was knocked down to eight counts and down to five counts and then the prosecution dismissed those five and came back and only filed two.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Well, is that all -- it is all there is?</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: There is no bar for – is there any – there is no bar under Montana Law for the refilling of those recounts?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: The remaining counts?</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Yes, the ones they dismissed.</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Pardon me?</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: The ones the prosecution dismissed, those --</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: I think that it is arguable.</p>
<p>I think that they can certainly come in and try to re-file them.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Well, they could try and file without filing at all.</p>
<p>Under Montana Law charges that are dismissed by a Court can be retried?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: No, sir.</p>
<p>I am saying that there are still five counts that were not dismissed by the Court.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Dismissed by the prosecutor?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: That is correct.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: And has the statute of limitations run by now?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: No sir.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: Under the Ninth Circuit's ruling in effect you get a complete immunity on all nine counts or you just say you are uncertain with respect to the result if it is just depends on the decisions of Supreme --</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: That is correct, we still have a lingering uncertainty as to those remaining counts.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: And you say that is enough to justify habeas?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: I think so and I would further submit to the Court that should this Court declare that Mr. Cline’s position is moot that the effect of that decision is to say that double jeopardy rights had been violated only has a remedy if he has been convicted and I think the double jeopardy protection is broader than that.</p>
<p>It protects the man from having to stand trial twice not just be convicted.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Where is a standard trial twice here?</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: And I suppose you do not know yet is not that your point?</p>
<p>You do not know that he may be charged again?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: That is correct.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: That is what is the concern?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Assuming my position is correct on the merits of this case that jeopardy did attach at that first trial and we have the trial twice.</p>
<p>We have gone through two trials.</p>
<p>I am projecting an uncertainty about a third trial that they could come back in and refile in those remaining five counts which should in fact can be a third trial.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: There is no threat of that at all?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Well, as in the fact that I am here --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: In addition we have the statement from the Attorney General that he will not do it.</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: You have do that, I --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Now, where is the threat that the next Attorney General might do it or his grandson might do it?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Well, Your Honor, my position is that the fact that I am here defending this appeal to me indicates that they are still pursuing this matter and this is the first that I have ever heard that they do not intend re-cross the case --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: I do not think that both of you by agreeing with again was jurisdiction, if it is not here?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Well, I think the jurisdiction is there Your Honor.</p>
<p>The issue has been raised.</p>
<p>Mr. Cline was in custody at the time the District Court assumed jurisdiction.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: But as of now he is not in custody, he is not subject to trial --</p>
<!-- unk--><p><b> Unknown Speaker</b>: Can I ask the similar question much the same way I suppose, but habeas corpus is a collateral attack on the judgment?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Yes sir.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Now, what judgment is outstanding of being collaterally attacked by your client?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: I think the answer to that Your Honor is that we have to put this in the context of the jurisdiction attaching in the Federal District Court.</p>
<!-- unk--><p><b> Unknown Speaker</b>: It had attached as to a judgment which has now been set aside?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: That is correct.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Now, these five other counts have never been reduced to judgment, have they?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: That is correct.</p>
<!-- unk--><p><b> Unknown Speaker</b>: How can they provide this basis for collateral attack?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: My answer Your Honor is that in this Court in the Carafas decision said that once habeas jurisdiction --</p>
<!-- unk--><p><b> Unknown Speaker</b>: I understand that case.</p>
<p>There was a judgment outstanding that was involved in the appeal.</p>
<p>The judgment survived the service of a sentence, but that does not hold that you can attack a non existent judgment, the judgment entered by a Court?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: In a double jeopardy context Your Honor, the fact still remains that my client had --</p>
<!-- unk--><p><b> Unknown Speaker</b>: May be items for related offense to what you would say, well, that is really encompass within what you have been acquitted over something like that.</p>
<p>There is always a possibility of somebody indicting you and you are making a plea and abatement or claiming bar, claiming double jeopardy.</p>
<p>The Court is never found at a basis for collateral attack that I know off?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Well, I would submit that I am not merely engaging in speculation when I am defending this appeal by the Sate of Montana who and the State which has already tried my client twice and still has five outstanding counts that unless jeopardy attached, they can re-file.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: And in any event that basic issue will be presented by the other case or resolution that support --</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: I submit that my client has a very significant interest.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Apart from your client's interest the basic issue will be decided in the other case?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Yes, Your Honor.</p>
<p>Now, as to the merits of the case, Mr. Keller throughout this litigation has maintained that there are no constitutional policies underlying the federal rule, the rule announced by this Court and Downum v. United States.</p>
<p>He has taken the position at the Montana rule offers as much protection to a defendant as does the Downum rule.</p>
<p>On the contrary, I would submit to the Court that historically the Downum rule has protected two basic interests.</p>
<p>First of all, it protects the defendant from having a judge or a prosecutor dismiss a case when it becomes apparent to either one of them that a conviction is going to be unlikely.</p>
<p>Secondly it protects, it ensures the defendant that he can proceed to trial before a particularly chosen tribunal.</p>
<p>Now, both of these interests are best served by having jeopardy attached at an early stage in the trial proceeding.</p>
<p>And the point at which jeopardy attaches as it had been pointed out in the Somerville decision merely begins the inquiry as to whether or not there a double jeopardy interest involved.</p>
<p>The mere fact that it is attached does not necessarily mean that the defendant’s double jeopardy interests are going to prevail.</p>
<p>For example in the Somerville case the interest, in sound judicial administration and the ends of public justice were the prevailing factors and so it is just a matter of balancing those interest out.</p>
<p>The problem with moving the point of attachment to a later stage in the proceeding is that you then trade a period of time during which the prosecutor can ask for a mistrial or dismissal and he can do so without making any showing of manifest necessity or extraordinary circumstances.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Well, of course there is still the factor of the sound judicial discretion of the trial judge as to whether to grant that protection?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: That is correct Your Honor, but I do not think that there is sufficient protection because the trial judge does have the guidelines that are brought into play by the attachment of jeopardy.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Are you saying that there is some really imperative need, I am not sure what manifest necessity means, but that there is some significant element of the administration of justice that requires the federal and the state time frame to be the same?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Well, what I am saying is that I think that the attachment of jeopardy rule protects essentially two interests.</p>
<p>Number one protecting the defendant’s right to proceed before a particular tribunal and secondly, ensuring a judge or prosecutor cannot dismiss when they think that a conviction is unlikely without showing manifest necessity.</p>
<p>I think that is sufficiently protected under the Downum rule and what I am saying is that if you move the point in time as Montana has done, then you start to jeopardize those two interests.</p>
<p>Because as you pointed out, during that period of time, you got such things as the opening statement of the prosecutor and more importantly, you have got the possibility of an opening statement by the defense counsel.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Well, I am not arguing or suggesting or intimating that one or the other is better.</p>
<p>I am simply saying is there any need that the federal rule bind all the 50 states as to this time factor?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Well, I think if we are going to make any sense out of double jeopardy protection in the state's areas, if we open the door, if the Court opens the door and allows the states to adopt their own rules as to when jeopardy attaches, then conceivably the state of Montana is free to adopt a rule such as the common law rule that jeopardy does not attach until the jury verdict comes down and I do not think that anybody is going to argue that that is going to protect the interest which have become associated with double jeopardy protection.</p>
<p>I think that this Court has specifically said in the Jorn case that at that point in time represents a point in time at which time constitutional policies come into play.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: That was a federal case, was it not, Jorn?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Yes, sir.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: Was Jorn a Court opinion or was it just a plurality opinion?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Justice Hurl, I think writing for plurality.</p>
<p>I should point out that this Court in Illinois v. Somerville and in Grieve v. Jones has applied the Downum rule to the state of Illinois and the state of California.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: It is clear is, it not, that in the federal system, in a non jury trial jeopardy attaches -- does not attach until after the first witness is sworn?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: That is correct.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: That is clear?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: I think so yes.</p>
<p>I think a distinction between the jury and a non jury trial is that in terms of practice in a non jury trial, most often if there is a mistrial or dismissal when it is refilled it comes back in front of the same judge which is the same tribunal, so you have not jeopardized the defendant.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: That is really not necessarily so in many cases?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: I know it is not necessarily so, but in Montana as a matter of practice, I think it is, whereas in the jury trial, once you have a dismissal or a mistrial, the second time around, you have got an entirely new tribunal.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Without question.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: In Montana, does the judge impose a sentence?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Yes, sir.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, then some of your double jeopardy considerations then apply even to a bench trial, I am thinking of the opening statement, stress and anxiety and the possible impression upon the trier of the fact?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Your question, Your Honor is do those things affecting the tribunal and the trier of fact?</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Would not all of those considerations kind of exempt the rule that jeopardy attaches before the first witness is sworn?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Yes.</p>
<p>In fact, I think a very good argument can be made for having jeopardy attached in an earlier time.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: I am just not following you in trying to draw the distinction between the two?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: But the counsel for the appellant, my time?</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Go ahead and respond, we will extend your time two minutes.</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: The counsel for the appellant has put forth really only one rationale for the Montana rule and that is that the jury prior to the swearing of the first witness has nothing to consider.</p>
<p>Well, there is essentially at least three fallacies with that argument I submit because number one, the jury does have something to consider prior to the swearing of the first witness.</p>
<p>The jury has the opening statement of the prosecutor and possibly the opening statement of the defense counsel and I was listening to the argument in Court here yesterday on the propriety of remarks made during voir dire and opening statements and so that is another element is, questions that come out during voir dire can certainly affect the jury.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Or damaging statements made during the jury selection process unless you have a trial judge who is going to protect the case are beyond the reach of --</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Well, Your Honor, I am thinking of more than just damaging statements.</p>
<p>I am thinking of things that oftentimes a defense counsel will ask the jurors what their thoughts are if a defendant chooses not to take the stand and try to feel them out on that point.</p>
<p>He is tipping his hand to the prosecution as to the approach he is going to take in the case.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: How about pretrial publicity that occurs a month before the case is set for trial?</p>
<p>That can have some influence on the jurors.</p>
<p>Surely you would not argue that jeopardy attaches a month before the case is set for trial?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: I would have a difficult time arguing the jeopardy should attach any time prior to the point where we actually know what the composition of the jury panel is before we have actually chosen the tribunal.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: In this case, in the opening statement had not been there, had it?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: No, sir.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: By the counsel for defendant, made immediately after the swearing of the jury, as I understand it?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: That is correct.</p>
<p>Thank you.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Mr. Moses?</p>
<p>Argument of Charles S. Moses</p>
<!-- Charles_S_Moses--><p><b>Mr. Charles S. Moses</b>: Mr. Chief Justice and may it please the Court.</p>
<p>In the argument presented before this Court, there was an issue raised that I would like to respond specifically to.</p>
<p>In Benton v. Maryland, the Court said that the same constitutional standards apply against both the state and the federal government.</p>
<p>As I see this case, this is an effort to spin off the non-constitutional baggage of the Benton decision.</p>
<p>That is the way I see it.</p>
<p>In other words, we are trying to create a non-constitutional parsing of what Benton v. Maryland has said.</p>
<p>Now, that may be fine, but I think that is what the issue is as I see it.</p>
<p>We are trying to say that it is a non-constitutional issue as to how this constitution should be applied in the state of Montana.</p>
<p>I see that as the issue.</p>
<p>Now, I do not think that is a valid theory.</p>
<p>I do not think the state of Montana either legislatively or judicially should be examining decisions of the Supreme Court of the United States to determine what is non-constitutional baggage in terms of time.</p>
<p>The Supreme Court applies the rule.</p>
<p>It decides when the constitutional rule should be applied and the states and the legislatures should follow it in my judgment.</p>
<p>Now, the question is also raised as to whether there is any significant difference as to the time when jeopardy attaches.</p>
<p>I think it is a very important question.</p>
<p>Let me suggest one point to you before I approach that question and that is the burden of proof.</p>
<p>It used to be and perhaps I am adopting from the equal protection cases the rule of compelling state interest or at least some rationale rule.</p>
<p>What we are doing here is not justifying, the state is not up here justifying and saying there is some compelling need not to have this rule that has been announced in Downum and Somerville and all of the rest.</p>
<p>There is some compelling reason in the state of Montana why we should not have this rule.</p>
<p>So that when we talk about the difference, I to not want to be on the defensive by simply saying to you that maybe I can satisfy you as to the significant difference and maybe I cannot.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: I thought all statutes were presumed constitutional, counsel?</p>
<!-- Charles_S_Moses--><p><b>Mr. Charles S. Moses</b>: That is, all statutes are presumed constitutional, but that is one of the problems we get, if I may just make a brief comment on that point.</p>
<p>In the state of Montana, we have conclusive presumption contrary to Murray v. U.S. and the teachings of the Supreme Court.</p>
<p>So that if we take the rule in Montana that we have a presumption to that effect which is conclusive, then we have presumptions which are again non-constitutional issues.</p>
<p>You see my point is that the states in my view sir, we have that presumption, but if you were to apply it in the state of Montana, you would find it conclusive in the --</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: Well certainly, no one suggests it is a conclusive presumption.</p>
<p>180 years of decision of this Court show otherwise, but you are talking about who the burden of proof should be on as to unconstitutionality?</p>
<!-- Charles_S_Moses--><p><b>Mr. Charles S. Moses</b>: Yes, I understand the point.</p>
<p>I am going to make that extra point in that it is my judgment that state of Montana does not follow at all the Supreme Court decision.</p>
<p>You are right there is that presumption, but my understanding is that if you are going to depart from the constitution you must show some compelling reason for doing so.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: Well, you have to -- I would think if you are going to depart from the constitution no showing would justify it.</p>
<!-- Charles_S_Moses--><p><b>Mr. Charles S. Moses</b>: Well, that is why the issue is very narrowly drawn in this case Your Honor because if the Supreme Court in Downum, Somerville and all the others, if that is an application of the Supreme Court then the State of Montana cannot change it, that is clear.</p>
<p>The issue in this case seems to be as to whether we can take of a portion of what the Court has said and say that that is non-constitutional baggage.</p>
<p>Now, that is as I see it.</p>
<p>If it is a non-constitutional issue as to the time when jeopardy attaches then of course there is not any significance and of course the thing can apply.</p>
<p>When you talk about the question of whether there is any significant difference, the question is whether you have a valued right to have his trial completed by a particular tribunal that US v. Jorn and US v. Sisson.</p>
<p>I think there is some merit as to permitting the prosecution a preemptory challenge to the entire panel.</p>
<p>I think there is a lack of reciprocity, perhaps like in voir dire.</p>
<p>What I am saying to the Court I think is simply that that issue was addressed to the Court in the issue by Mr. Chief Justice Tuttle in this particular manner in which he said on page 15 is that the valued right to have this trial completed by a particular tribunal independent of the threat of bad faith conduct by the Judge or prosecutor.</p>
<p>Now, I take that to mean that you are entitled to the double jeopardy argument regardless of whether the discretion of the Court in dismissing was in good faith or in bad faith.</p>
<p>I think that when we come to a valued right, the question is simply, is the person in jeopardy when the jury is empaneled and sworn.</p>
<p>I think that he is.</p>
<p>I think the opportunity to have preemptory challenge to the entire panel, in our state, we are now giving some preliminary instructions as to what the law is in this particular case, we have opening statements in which there are outlines of what they intended to prove.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Mr. Moses from that point of the preemptory challenge to the entire panel which concerned me before, under Montana Law does the prosecutor have a right to have the prosecution dismissed after the jury is sworn, but before the first witness is sworn or is it subject to permission by the Trial Court?</p>
<!-- Charles_S_Moses--><p><b>Mr. Charles S. Moses</b>: In my judgment it is subject to permission by the Trial Court.</p>
<p>I do not think he has an absolute right, no sir.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Well, then his argument, and I did mention your response to that, his argument is that if you have a prosecutor who seeks to manipulate by dismissing the panel, he can do it equally before the swearing and then equally as well before the jury is sworn as immediately thereafter.</p>
<!-- Charles_S_Moses--><p><b>Mr. Charles S. Moses</b>: I think is is a point well made by Mr. Keller.</p>
<p>I think that is true, but I think it points out the problems that we are having.</p>
<p>We are just taking another single step down the line, but the manipulation according to Justice Tuttle, the right here preserved is independent of the threat of bad faith conduct by Judge or prosecutor, whatever they do, jeopardy has attached.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: I suppose the countervailing consideration, I am just trying to think it through is that before you really start questioning witnesses and the like, you do need a point in the procedure, proceedings where there is kind of a cleanup of all outstanding motions and odds and ends before, whereas which might have involve a dismissal or retrial or change in the date of indictment or something like that and is not there some sense to saying that an orderly procedure would have that come right before you put the witness on or before you make your opening statements rather than right in the midst of the jury selection processes and before the jury.</p>
<p>Just in terms of an orderly way to get the trial going is not there something that favor his argument here?</p>
<!-- Charles_S_Moses--><p><b>Mr. Charles S. Moses</b>: I do not think so, but I am not sure I understand the point completely.</p>
<p>The pre trial motions and everything that is done ordinarily is done before the selection of the jury.</p>
<p>We had two judges to rule on these motions that we urged and urged and urged.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: But is it not true that in this case they waited until after the jury was sworn before they presented some motion which the judge regarded as timely?</p>
<!-- Charles_S_Moses--><p><b>Mr. Charles S. Moses</b>: Those motions were evidentiary in nature only.</p>
<p>What I do is that I present all of my pretrial motions.</p>
<p>I argue them again and again and at the time of the trial, I have the motions in limine.</p>
<p>Now, I could have waited, there is no question, I could have waited until the first witness, that was not the issue at that particular time.</p>
<p>It was not the issue.</p>
<p>It was not ingenious.</p>
<p>My issue was at that time that the entire nine counts did not stayed a claim for relief and they dismissed all of them, but the two of them and I am still maintaining, despite the Circuit Court of Appeals that the First Count was never any good and that was the issue.</p>
<p>And I felt that ought to be resolved because if you had to go on with the case with the other five counts then it is difficult under Ashe v. Swenson and Turner v. Arkansas to go back and try the other issues that had been kicked out by the Court and I put that in my brief and addressed it to the attention of the Attorney General and to the Court.</p>
<p>Here is the dilemma, let us go to the Supreme Court and get it all decided.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Mr. Moses, may I interrupt a minute.</p>
<p>Did you make this motion before the jury had been sworn?</p>
<p>Did you make the motion to restrict the States evidence?</p>
<!-- Charles_S_Moses--><p><b>Mr. Charles S. Moses</b>: No sir I did not.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Could you have made it under Montana Law prior to the swearing of the jury?</p>
<!-- Charles_S_Moses--><p><b>Mr. Charles S. Moses</b>: I do not know the answer to that sir and the reason that I do not know --</p>
<!-- unk--><p><b> Unknown Speaker</b>: Is there anything in Montana law that would have prevented you making it?</p>
<!-- Charles_S_Moses--><p><b>Mr. Charles S. Moses</b>: No sir, I know of no law that prevents it.</p>
<p>The Attorney General at that time argued that motions in limine were unknown to the State of Montana as far as evidentiary rules are concerned.</p>
<!-- unk--><p><b> Unknown Speaker</b>: The information was defective because of this typographical error on its face?</p>
<!-- Charles_S_Moses--><p><b>Mr. Charles S. Moses</b>: No sir.</p>
<!-- unk--><p><b> Unknown Speaker</b>: What was your motion then?</p>
<!-- Charles_S_Moses--><p><b>Mr. Charles S. Moses</b>: My motions that were presented before two Courts prior to any having the trial commence.</p>
<!-- unk--><p><b> Unknown Speaker</b>: But the jury had been sworn?</p>
<!-- Charles_S_Moses--><p><b>Mr. Charles S. Moses</b>: No sir.</p>
<p>I presented these motions in full, supported by briefs that there was not under any of the counts sufficient claim for a criminal violation.</p>
<p>Those motions were not defeated twice.</p>
<p>Then I went into Court after the jury had been empaneled and sworn to be consistent.</p>
<p>Alright, if that is your view that they do state a cause of action then my motions were to require them to prove the venue as laid, to prove that there were false and forged documents.</p>
<p>Those were the nature of my objections and also to confine them to the proof of a particular time of which I happen to think would not win, but the other motions where what was important preparing false evidence, those motions in limine, that was what --</p>
<!-- unk--><p><b> Unknown Speaker</b>: But the motion that precipitated the controversy that is here today was to restrict evidence to the dates in the information as I understand it --</p>
<!-- Charles_S_Moses--><p><b>Mr. Charles S. Moses</b>: Well, they have extracted that from my point of view, so that was not the vitality of the motions that were presented.</p>
<p>For instance in Montana, you have to determine whether the time is relevant, whether it is significant and whether you can prove it in sometime prior to five years before the filing of the complaint.</p>
<p>I really did not think that was that relevant.</p>
<p>I think it is necessary when they do not, when it is consistent with pretrial motions and we have argued vigorously and supported in our trial brief.</p>
<!-- unk--><p><b> Unknown Speaker</b>: The effect of your motion was to bring about a dismissal of the information?</p>
<!-- Charles_S_Moses--><p><b>Mr. Charles S. Moses</b>: Oh! Yes, ultimately dismissal of these other counts.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Yes, in practical effect your motion was to dismiss because the state had no evidence of the offense that was charged?</p>
<!-- Charles_S_Moses--><p><b>Mr. Charles S. Moses</b>: I disagree with that sir.</p>
<p>The State had evidence of those charges as to that particular time.</p>
<p>There was the filing of the application.</p>
<p>There was other information submitted.</p>
<p>There was a final settlement in the Workmen’s Compensation covering a spectrum of time of almost a year.</p>
<p>They could have prevailed on the first application to show that it was fraudulent within the time span stated.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Is your motion in the appendix, I do not recall?</p>
<p>I do not think it is in --</p>
<!-- Charles_S_Moses--><p><b>Mr. Charles S. Moses</b>: I do not believe that it is sir, no sir.</p>
<p>I think one of the, to conclude my argument, one of the things that concerned me theoretically if I may place it it in that light is the question of raising non-constitutional issues as a theory to be adopted by this Court.</p>
<p>For instance, I think Justice Stewart addressed the attention to Williams v. Florida and Apodaca v. Oregon.</p>
<p>It is necessary I think to approach that directly.</p>
<p>Is there a difference or a distinction between those cases and this case?</p>
<p>I happen to believe that there are.</p>
<p>First of all, we have an authoritative statement in the Supreme Court of the United States as to this particular issue.</p>
<p>In other words, that jeopardy attaches when the jury is empaneled and sworn.</p>
<p>I think that is a difference and a distinction.</p>
<p>There was something bag and baggage, that was a part of double jeopardy as enunciated by the Supreme Court.</p>
<p>I think that is a difference and the distinction in Williams v. Florida and Apodaca. Furthermore, it is my belief that there is a difference because the application, the Court is called upon to apply this constitutional standard and the question is when should it be applied.</p>
<p>It is implicit in the constitutional provision itself as to when it should be applied and I think that that makes it – it involves itself more than the issues raised on just those jury issues.</p>
<p>For those reasons and others, we think that the decision of the Circuit Court of Appeals should be affirmed.</p>
<p>Thank you.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Thank you Mr. Moses.</p>
<p>Mr. Keller before you begin.</p>
<p>Let me put this question for you, relating to some questions I put earlier.</p>
<p>After the swearing of the jury, in Montana and I take it the prosecutor is permitted to make the first opening statement, if he elects to do so, is that correct?</p>
<p>Rebuttal of Robert S. Keller</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Yes, sir.</p>
<p>Ordinarily there is a brief statement made by the trial judge before the jury is even voir dire to give them some concept of why they are here and then the question starts.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: I am addressing myself now to the possible damage or injury to the defendant that can occur from the opening statement.</p>
<p>If an opening statement is let us assume one that is outrageously bad and misrepresentation by the prosecutor.</p>
<p>Of course the prosecutor is not going to move for a mistrial on that ground, but the defense might do so and I suppose under Montana procedure and practice, if the opening statements have been excessively bad, the Court could grant that motion?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Yes sir.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Then there would be no double jeopardy problem?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: I do not know about that, but yes the Court could grant that motion.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Well, if (Voice Overlap) that motion at the request of the defendant, the defendant would be in rather a difficult position to raise --</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Well, his position I am sure and knowing the talent that we have in Montana would be that he was forced to do this and it is double jeopardy and I think there would be some merit to that approach in the proper situation, but I am sure that is not why you asked the question.</p>
<p>We do not need to get that far.</p>
<p>Yes, if the conduct of the prosecutor were outrageous, it would be the defense move for a mistrial or conceivably the Court of its own motion grant a mistrial just for this reason.</p>
<p>It would not be too unlike yesterday’s case when you spell out the reason.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Presumably if the Court granted a mistrial of its own motion, a double jeopardy question could well be preserved.</p>
<p>It would be much less likely if the defendant moved for it and of course we could assume that the prosecution is not going to move for it?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Not under those circumstances, no sir.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Unless a senior officer happened to walk in the courtroom and wanted to avoid the problem, well, go ahead.</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Just to respond to some of the comments; we did not extract this part out of the motion in limine.</p>
<p>This motion at that time which at that time leaves the state in the position of trying to convict for an offense that was repealed a month before it is alleged to have taken place, is not an extraction, that went to the heart of everything.</p>
<p>They had to do something with those three counts.</p>
<p>A part of the confusion that arose here is of the nine counts, three were subject to the problem so the judge dismissed them sua sponte.</p>
<p>The state dismissed of its own motion the remaining six and I think this is Mr. Leaphart’s point that he is still sweating out, then on the retrial, one of the defective counts and one of the counts that state dismissed were all that were charged, so there is still five counts sitting out and I see what his point is and we do not intend to prosecute, but that is not just something we just brought up.</p>
<p>We did not even know anything about this until it just came out in the Solicitor General’s opinion and this is the first time that we even thought about it, no we will not.</p>
<p>The voir dire questions that were that were commented on as true in both systems, federal or state.</p>
<p>If you are going to talk about opening statements, that is fine.</p>
<p>That can come up under the state system, but if you are going to affect that jury by your voir dire questions, you affect them under either system, so that is not a distinction between the two systems, if you want to affect your jury because they are not empaneled and sworn yet.</p>
<p>The valued right concept may be a valuable one, but I would like to call the Court’s attention that we do not see it from this Court until 1948 in Wade against Hunter and then we are talking about a court marshal.</p>
<p>In all candor with the Court, Justice Douglas relied on Cornero, a lower Court case of 1931 that refers to the valued right and in further candor, I found the valued right as such clear back in United States against Simmons, United States against Shoemaker and that is back in 1840, but nobody said what it was and the most that I have a feel of it was because that is the overall concept, is let us get the case tried now as distinguished from we have a right to this particular tribunal.</p>
<p>The question of judge trial in Montana needs to be tempered a little bit by the fact that Montana has an extremely liberal disqualification feature.</p>
<p>So we can disqualify for no reason, either side one judge in a criminal case, two in a civil case.</p>
<p>You do not have that same rule in federal cases.</p>
<p>It is tough to get a federal judge disqualified.</p>
<p>Does this mean if we are going to adopt this as part of the constitutional baggage that we know are going to have to be faced with what you can do disqualify a judge if you have a vested right to this judge in a judge trial.</p>
<p>I really do not mention to complicate it, but Montana is that way, going back to the wars of the copper kings, it is not hard to get rid of a judge in Montana in either criminal or civil cases and I do not say that disrespectfully.</p>
<p>I was seven years on the bench so I just know it is not hard to get rid of them.</p>
<p>The only other thing I have to conclude with the argument is I want to pose this question.</p>
<p>Suppose in Congress in 1970, in the Criminal Appeals Act had instead of saying until jeopardy attaches had said when the first witness is sworn, would that have been unconstitutional?</p>
<p>Would we be here today?</p>
<p>Supposing Congress today enacts legislation that says in the federal system, jeopardy does not attach until the first witness is sworn or enacts the model penal code, is that unconstitutional and I think to me that that is the crutch of the issue.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Thank you gentlemen.</p>
<p>You have all been most helpful.</p>
<p>The case is submitted.</p>
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The OYEZ Project </div>
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Sun, 08 Aug 2010 19:14:24 +000054459 at http://www.oyez.orgCrist v. Bretz - Oral Reargumenthttp://www.oyez.org/cases/1970-1979/1977/1977_76_1200/reargument
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<a href="/cases/1970-1979/1977/1977_76_1200">Crist v. Bretz</a> </div>
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Transcript:&nbsp;</div>
<p>Argument of Robert S. Keller</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: We hear arguments first this morning in Crist against Cline.</p>
<p>Mr. Keller, you may proceed, whenever you are ready.</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Mr. Chief Justice and may it please the Court.</p>
<p>You will recall this matter was remanded to be re-briefed and re-argued on two expanded issues and the first issue was whether or not the federal rule that jeopardy attaches in jury trials, when the jury is sworn is constitutionally mandated.</p>
<p>I think after reading the briefs in this thing that we can fairly agree without arguing that at the time of the constitution it was not constitutionally mandated and it was not a part of the constitution.</p>
<p>There were two common law rules at that time, Lord Coke's Rule and -- and the Double Jeopardy Rule and when we get to as far as Perez.</p>
<p>Perez in the Touch Tone case of manifest necessity says, “This is not a Fifth Amendment consideration, this is not Double Jeopardy.”</p>
<p>Perez was going into the question of whether or not it is permissible to take away that defendant’s right to a jury, once the jury is empaneled to sworn, Lord Coke’s Rule made it mandatory that you go to court for the verdict, but it clearly at that time was not a part nor considered a part of the Fifth Amendment.</p>
<p>It does not become that until -- and various jurisdictions in construing the rule of practice or the Lord Coke's Rule, there were dismissals.</p>
<p>There were improper dismissals and they held the improper dismissal to be tantamount to a jury verdict and as a consequence of that, then it was Jeopardy under the Fifth Amendment.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: In the original concept of the common law, there could be no such thing as a failure of a jury to reach a verdict, is not that correct?</p>
<p>They lock them up on bread and water and they would come back with a verdict on whenever they ready?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: This did happen, yes. You do not see any changes in that, until Blackstone does bring out the words -- maybe there would be evident necessity, but it took a real necessity, a juror had to die, a hung jury are the things that gave them all their (Voice Overlap) --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: There was no such thing as a hung jury in the concept of jury common law?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: No, no.</p>
<p>Ironically in the common law states, common law to get clue, in Pennsylvania and I am talking about cases that were all decided back between 1800 and 1820, they upheld Lord Coke’s Rule and that jury had gone 36 hours, 24 without food or drink.</p>
<p>Two jurors, 75 years of age or older, who had just got out of the hospital were in trouble and the doctor looked at them and said if they have some food or drink, something they can go on.</p>
<p>So, the judge permitted the jury to vote on it and the jury said, “No, do not give it to them” and obviously they had them hanging on the ropes and the judge finally let them off the hook and dismissed the jury and that Pennsylvania Supreme Court held, “No, this was improper and free the defendants.”</p>
<p>They ought not to be and they took a strict reading of -- of Lord Coke’s Rule.</p>
<p>This gets commented on, not only later by me, but when I start talking about the Arizona against the Washington case and wonder weather or not we even ought to be here today in the face of that case, that opinion, but that case recites the reason why you do not keep a jury under that pressure and certainly as you mean, it is ironic.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Was there an earlier time when even after an acquittal, prosecutions were brought again and again until --?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: This is a recited fact during the reign of the Stewarts, Mr. Chief Justice and Lord Coke's Rule would have come down early in the 1600s and between that time, in 1688 you would had reign of two kings, the Stewarts at that time, yes there were re-prosecutions until the prosecution could get a sufficient case together, and it was horribly abused.</p>
<p>The history as I read it that as of the revolution in 1688, they went back to Lord Coke's Rule and we did not have that occurring anymore.</p>
<p>The second part of your question is if there were an acquittal, would there be a re-prosecution?</p>
<p>Short of the reign of the Stewart and I do not know the answer to that because that comes out on a case so we know of no time, one there was ever an acquit of a re-prosecution and as a consequence of that whether it was by a rule of Court or whatever the rule, as a consequence of the acquittal, than the double jeopardy application of the common law came into the effect and I cannot answer.</p>
<p>I know of no case, whether has been an acquittal and a re-prosecution, but I was not researching from that standpoint either.</p>
<p>When we researched this and found that the time of jeopardy at the common law is at the time of the verdict of the jury.</p>
<p>There was not any question in our minds.</p>
<p>One; nobody today is going to go back that far in time and say that jeopardy does not attach until the time of the verdict, as it was at the common law and we felt that for simple reasons that we had too much law since then, particularly combining manifest necessity with double jeopardy.</p>
<p>Two; fundamentally it was just unconstitutional you can put a defendant to the blade, you can commit his defenses and still not say that jeopardy attaches, but we had real problems in briefing this, in getting the vehicle to come -- to come forward from the time of -- of the judgment up to where we want to be today.</p>
<p>We did not know what the vehicle was and then came Arizona against Washington and the vehicle is the “valued right” concept.</p>
<p>Downum in 1963, Justice Tuttle in the Ninth circuit in this case said that Downum necessarily has to stand for the proposition that jeopardy attaches at the time that the jury is sworn and the reason that Downum stands for that is because that case involved a case where after the jury was sworn and before the first witness was sworn, the case ended.</p>
<p>They did not have their witnesses for count 6 and 7 and the trial was terminated and from that, Justice Tuttle says, “Downum necessarily stands for this position” and I submit that when you read Arizona against Washington today, you have to come out with the same conclusion.</p>
<p>Arizona against Washington said, “This was an improper opening statement by a counsel, in this case defense counsel, but made at that time between the swearing of the jury and before the first witness.</p>
<p>The fact that two witnesses testified in that case are really incidental to the opinion.</p>
<p>The rationale is the “valued right” concept goes back to the time of opening statements and that of necessity is before the time that the first witness is sworn.</p>
<p>So reading this case as you read Downum, you have to say Arizona against Washington stands for this proposition and that means that the only thing that we can really argue today to this Court is that we do not feel that the “valued right” concept means all of that and we are not sure that what this Court meant, when it said that.</p>
<p>And the reason that I say that is that this Court was particularly careful in the opinion, not to say that.</p>
<p>Arizona against Washington was argued the before the day we argued the last time, so it was pending during the time that our case was pending.</p>
<p>Much of what was said in Arizona against Washington comes out of the briefs that we submitted in this case.</p>
<p>So, that we know that the Court was conscious of this case when the opinion was written and yet the Court assiduously did not say jeopardy attaches at the time that the jury is sworn.</p>
<p>So, we do not know what we are talking about in terms of “valued right” as the vehicle for bringing jeopardy from the time of verdict, up to some starting point in time.</p>
<p>If you read the reasons for the valued right in the Arizona case, then you find that it is to avoid emotional and financial burden a retrial would cause as you find this to prolong the -- avoid the prolongation of the period of stigma and it may even enhance risk that an innocent defendant maybe convicted.</p>
<p>That means if you read it literally, you could even be going back to the time that you first select the panel from which you are going to voir dire.</p>
<p>We do not know where the starting point is on the valued right concept.</p>
<p>We do know, what has been argued under the valued right that this valued right is a right to a particular tribunal and that is expressed as early as 1840 in United States against Shoemaker, it is Lord Coke’s rule.</p>
<p>You are entitled to this panel, this particular jury.</p>
<p>And is also has been argued that the valued right means that anything that goes to that jury, whether it is in the voir dire questioning, whether it is in the opening statement, anything that does something to that tribunal makes that tribunal valuable.</p>
<p>Serfass, United States against Serfass held that the constitutional policy is underpinning the Fifth Amendment are not implicated until jeopardy attaches.</p>
<p>Serfass also held that this Court has consistently adhered to the view that jeopardy does not attach until the defendant is put to trial before the trier of the facts, jury or non-jury.</p>
<p>And then Serfass held, in two different places, without risk of determination of guilt, jeopardy does not attach.</p>
<p>Now, if we read the Serfass case in conjunction with Arizona against Washington, then we are saying that clearly jeopardy does not attach before the time the jury is sworn and no later than the time that the first witness is sworn and we have at least narrowed it down to that point.</p>
<p>If we go back to those points then, then when we talk about the financial and emotional burden that was expressed in the Arizona case, that is not applicable to that narrow period of time.</p>
<p>What difference are we talking about in finances or emotions between the time the jury is sworn and the time the first witness is sworn?</p>
<p>The second reason given is the prolonging of the stigma and that distinction has gone.</p>
<p>Surely, we are not talking about a prolonging of a stigma between the time the jury is sworn and the first witness is sworn.</p>
<p>And, the last is enhancing the risk of conviction of an innocent man and that cannot happen until the first witness is sworn.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: In Montana, is it customary for both the counsels to make their opening statements before the first witness is called?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: No sir and I want to get to that and the unfortunate part about it and that is where you have all of the advantage, I can only tell you of my practice in Montana and it is 20 years of trial on both sides and on the bench and it is uncommonly rare that defense counsel says anything in the beginning.</p>
<p>I have never heard a defense counsel say anything in the beginning that the prosecution did not already know.</p>
<p>The only thing that they say is something that they want that jury to hear, which the prosecution already knows and they want the jury to keep a fair mind on something.</p>
<p>an open mind with there as sort of facts come out.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: They want the jury to focus on one point?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: That is conceivable.</p>
<p>You do pick it up in the voir dire, to tell you the truth sir.</p>
<p>I do.</p>
<p>It is there.</p>
<p>That is right, but at least we have reached the point that we are not going to hold constitutionally that somebody is entitled to anything less than a fair jury, so what you have done to the jury in the voir dire, is not something that is entitled to protection and this gets to the point that I was reaching.</p>
<p>The real concept of a “valued right” to me is any trial lawyer knows that that when that defendant goes through a retrial, let us say a hung jury, so we do not have any problem there, he really has the odds against him.</p>
<p>This was brought out in the Arizona case, by Judge Leventhal in the Carsey case and Judge Leventhal pegged it.</p>
<p>The second time through, those -- those witnesses whose weaknesses were developed by cross examination by defense in the first case, they start to shore up their testimony.</p>
<p>It is not a -- it is not a significant alteration, but it is there and I have yet to see the defendant go through a retrial that everything did not change.</p>
<p>All of the surprise is gone. The prosecution knows where he has gone after the first dry run.</p>
<p>The prosecution does not know that in the first case.</p>
<p>They have to be prepared against anything his defense counsel will do.</p>
<p>In the second run, there is no spontaneity, there is nothing.</p>
<p>That defendant has an impossible burden that second time, he really does and this is the reason why -- I thought about this after the argument last time.</p>
<p>You know I argued to you then as matter of law and as a matter of fact that defendant is not in jeopardy until something comes up that makes out a prima-facie case.</p>
<p>And I was arguing from Serfass that without risk of determination of guilt, but I thought about this afterwards and I thought, you know really, from the time that the defense counsel makes his first objection or does not make his objection as a matter of strategy, that defense is committed.</p>
<p>That is when they really going in and expose their hand to the prosecution and from that point on, that defendant does have a valued right to get this matter heard by this jury, by this judge, by whatever because now, for the first time, when he did not have to, he has tipped his hand and now his concern is interest is there, is important or as was said in Jorn in defining the same valued right, if the right is valued it is because the defendant has a significant interest in the decision of whether or not to take it from the jury.</p>
<p>And I submit, until the time that the defense counsel has done something in this case, it tips his hand to the prosecution, up until that point it is not the time of interest that is so significant, but deserves constitutional protection, but from that point on it is.</p>
<p>Rather than try and find out in any given case when that is, then it is the time evidence is given.</p>
<p>You know is right after that, in any given case.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: But it could be if against the usual policy, defense counsel makes his argument to the jury?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: It certainly could.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: It could, then he is committed?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: That is right.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Probably a committal --</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: That is right, problem with that rationale is I just do not see --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: They do not do it?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: But if we are going to say that is what it takes to put jeopardy, I expect we will start seeing it, but that the same defense counsel could tell the prosecution three weeks before that “This is what I have up my sleeve” and I cannot imagine in trying to tell him three weeks before anymore than I can see in a competent defense counsel tipping to the prosecution.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Well, I think the difference is that one is in the presence of the Court and he is stuck with it as if he just tells the prosecutor he is not stick with it?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Oh! I see what you mean.</p>
<p>Well, that is true.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Would not that be?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Yes, yes that clearly is.</p>
<p>He could do it for the record three weeks before if he wants to, but as a practical matter no, he really does not and it is not a case of giving the prosecution a week to get ready.</p>
<p>No defense counsel gives a prosecution five minutes to get ready if they can avoid it.</p>
<p>You do not tell something that they do not know, until it is your turn to put on your case and then it comes and I just simply and I have to speak empirically, I do not see defense counsel telling the prosecution anything any sooner than they have to.</p>
<p>And, when they make an opening statement, they do not tell them anything, the prosecution does not know.</p>
<p>They are just telling the jury what to expect, but the prosecution knows this.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: As I understood you earlier, you told us that in your State of Montana, it is not the practice to have opening statements.</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: No, I did not.</p>
<p>In answer to that property then Mr. Justice Stewart, it is, but not at the time of the -- prior to the taking a testimony.</p>
<p>The defense counsel usually reserves his opening statement.</p>
<p>He has the right to make it then and he asks -- he says, “I am going to reserve” and when the prosecution has rested and the defense is now ready open his case, then he makes his opening statement, that is long after the witness --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: After the prosecution witnesses have all testified, the prosecution has rested, then the defense counsel makes his open statement to the jury?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: That is correct.</p>
<p>Now, he has made it before, but he has never -- I have never heard he make it that he tells the prosecution anything.</p>
<p>It is only for the benefit of that jury going to this particular -- the defense knows what the prosecution is going to give.</p>
<p>If he did his home work at all, he knows what the witnesses have and he is telling this jury at that time what to anticipate and in essence to keep your mind open, but he is not telling the jury anything that the prosecution does not already know.</p>
<p>It is that tipping of the defense that I think makes anything subsequent to that valued, to that defendant.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: When if at all Mr. Keller does the prosecutor make his opening statement in your practice, in Montana?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Well, he makes his statement as such after the swearing of the jury and before the swearing of the first witness, but there is in various jurisdictions, various judges before the state, there is some opening remark made at the time you first picked the panel of 24 that you are going to cut down to 12, so that they at least know who the defendant is, what he is charged with.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Well, that is part of voir dire, is it not?</p>
<p>So you can ask him, “Do you know the defendant --”</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: And the prosecutor who starts first may well be the one.</p>
<p>The judges do not enter that actively in the questions of the parties doing this, as distinguished from the federal court, where the judge literally conducts all of the voir dire.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: But, do the Montana judges not, at the time of the filling of venire into the box, make some very brief statement that this is a criminal case and such and such is the charge and that sort of thing?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Yes sir, yes sir and it varies with judges.</p>
<p>Almost all of them do at least that.</p>
<p>Some will go through preliminary half-a-dozen questions.</p>
<p>Do you know any of the -- these are the counsels and the parties, do you know them and ask them and get those questions out of the way in general and if they do, they hold their hand up and they leave it up to counsel to interrogate further.</p>
<!-- unk--><p><b> Unknown Speaker</b>: And Mr. Keller, when actually is the jury sworn, after selection or as the panel is sworn?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: It is initially Sworn when it is picked to tell the truth as to the answers that are given, but when -- and that is the whole panel.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: It is the whole venire?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: That is correct.</p>
<!-- unk--><p><b> Unknown Speaker</b>: And before the 12 are chosen?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Exactly.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: That is only --</p>
<!-- unk--><p><b> Unknown Speaker</b>: Now the 12 begin -- after the 12 are chosen or later?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Sworn again.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: And that is to (Voice Overlap)?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: That is right.</p>
<!-- unk--><p><b> Unknown Speaker</b>: And what we are talking about --</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: It is three times they swore them.</p>
<p>The first swearing is that they are going to tell the truth as to the questions asked, generally as to whether they qualify even to be jurors in general, then they go and they have another oath that they are going to answer the questions asked in this particular cause by counsel and as to their respective qualifications.</p>
<!-- unk--><p><b> Unknown Speaker</b>: And that each one -- each one individually does that? Do you swear each one individually?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: No sir, no sir, never.</p>
<p>In fact, as a matter of practice swear everybody in the Court room the first time.</p>
<p>First time it is done in the Court and they have to be qualified.</p>
<p>Okay then from that, you pick your panel for that day and you usually pick 24 for a trial of 12 because you have enough peremptories going in there.</p>
<p>You want to be -- when you are all done, you want to have 12 left.</p>
<p>You have 20 in there to get by.</p>
<p>There, they stand up and take the oath, but so the remaining jurors in the courtroom who may well be called into this case if somebody is out for cause and that is to answer the questions in this case. But when you finally get to 12 and the alternatives, if there is going to be any, those 12 or 14 stand up and now are sworn the third time.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: But this first oath is essentially like the oaths given to witnesses, merely to tell the truth?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Yes sir.</p>
<p>First two oaths are that.</p>
<p>I do not think anybody ever contented.</p>
<p>They have anything to do what we are talking about.</p>
<p>We are talking about swearing this final body of 12 to --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: That is the -- that is the swearing -- that it is claimed jeopardy -- jeopardy attaches?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: That is correct.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Only then, not to --</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: That is the one I surely construe to mean.</p>
<p>That is -- historically, that is the time when that jury is sworn --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Some have argued it ought to -- some have argued that -- that jeopardy ought to -- ought to attach earlier?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Yes, yes because of what is said to that jury in the voir dire that it should.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Exactly.</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Yes, and our position on that is consistent with the Arizona case and we cited in our brief Morris, you are just not entitled to a prejudiced jury.</p>
<p>The real function at the selection at that time is to come out with 12 jurors that are fair-minded and impartial, and it may well be that as a defense counsel, I would like to have some sleepers on there.</p>
<p>It may well be as a prosecutor, I would like that, but I far cry to say that it is entitled to Constitutional protection.</p>
<p>So theoretically, we are supposed to be coming out with 12 impartial people and we have no particular interest in that tribunal other than the fact that they be impartial jurors.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Mr. Keller, you have indicated that it would make sense to have the point to which jeopardy attaches be one that the defendant has committed himself or want to make a difference.</p>
<p>Are there reasons for moving the point at which jeopardy attaches back from -- from the present rule that it attaches when the jury is sworn back to back, significant enough to overcome the interest in having settled law remain clear and definite and certain.</p>
<p>There are some advantages there, but everybody now knows what the rule is.</p>
<p>Do you think it is the change?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Settled law did not become settled law --</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: No, but they are settled today --</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: -- until 1963, well over a century and a half, almost two centuries after we started.</p>
<p>Wade against Hunter first annunciated the value of right concept a century and a half after we started and I might add in a non-jury case, and now it is settled, but it really did not become this till 1969 because it was not settled in Montana.</p>
<p>It was not settled in any of the States until Benton against Maryland in 1969.</p>
<p>It is settled in the minds of the Federal Judiciary because it has been around for a long time, but it has not been with the others.</p>
<p>As far back or as recently as 1935, the ALI is recommending that jeopardy not attach until verdict of the jury, where it was in the beginning.</p>
<p>So (Voice Overlap) it is not settled and our question is, have we afforded protection for this defendant under any guise by saying it attaches at the same time as it does in a non-jury case.</p>
<p>Excuse me, sir.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: As I understood, your point is that the -- this -- this point of the law that something happens when the jury is empaneled and sworn.</p>
<p>It was not ever really part of the double-jeopardy --</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: No.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: -- was at all.</p>
<p>It was part of a quite a different rule that a person is entitled once the jury is empaneled and sworn to go to trial with that jury and to go to a final conclusion of the trial?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Civil or criminal?</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Civil or criminal and that is a different -- it has a different origin from the -- from -- and is unrelated to the double-jeopardy?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: That is correct.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Mr. Keller, exactly when you were a judge, I think most of them the jury, could not the defense counsel commit himself on cross examination?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Yes, that is why I agree with the rule of attachment which is the swearing of the first witness because I think when that first witness, the prosecution starts to testify, the defense counsel commits himself by objecting even before cross-examination, by objecting to a question or for strategy reasons, not objecting to testimony.</p>
<p>At that point he has in this thing and that is why I do not have any objection and I do not mean it really because of Montana statute either.</p>
<p>Sure, I want to see, I think we have afforded protection, but just in terms of trying to figure out where this ought to be and be something that is going to protect the defendant’s right across the board and not just in a given State, I can see it attaching that soon because at that point the defense counsel is starting to put something into this case, but he does not want to have to. He has tipped his hand.</p>
<p>If he goes a second time, it is not going to be that way and I know it is not going to be that way.</p>
<p>Judge Leventhal pegged it and I think any of us who have tried cases know that Judge Leventhal has pegged it, that second run is for a --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: (Inaudible) real easy, talking about real easy?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Real easy.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: then he commits himself, well, I made a mistake, judge, I move to suppress the (Inaudible) trial?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: No, he really does not.</p>
<p>Yeah, I know.</p>
<p>I know that -- that he has certainly got to do his work, but he has got to his work when his client came in the office and you can go back to the time that the information is filed and you see efforts on that time to -- to question whether or not the affidavit for leave to file is correct or you question whether or not, before I adjust the piece, probable cause was shown and cause a transcript to be made and you have argued that and that is all part of the tools of the trade, but the real question is, has he committed himself then?</p>
<p>No, he really has not because if he does not do it then, he is not going to be able to do it.</p>
<p>So that is just part of the process.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: (Inaudible) if he changes his own strategy --</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Of course he could.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: Why should -- why should the so-called “valued right of the defendant” to go to trial before the first jury depend entirely on when the defendant’s lawyer has committed himself, as you put it?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Because I do not think his right is that valued until that point.</p>
<p>Lord Coke’s rule, if you have read into biographies on Lord Coke, he never gave any reasons for his rules.</p>
<p>If they took out all the rules that he gave with no reason, they would lose 75% of the English law, but his rules have been good so how do we find out what the reason is that gave us valued right and that is where we came into this case.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: What I am asking you to do is to perhaps do what Lord Coke did not and supply a reason for the statement you make that the commencement of the “defendant’s valued right” begins with the point when the defendant’s counsel has committed himself, why should that be?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Because once he has tipped his hand to the prosecution on something that the prosecution does not know where he is going to go, then if he gets a retrial on that point, there is nothing left for the defense to have.</p>
<p>It is just that -- it has already been run.</p>
<p>There is no spontaneity.</p>
<p>The second trial, and I use this as an example where there is a hung jury, so it is a clear rerun of the whole show and that defendant’s chances at that time, Justice Rehnquist are just simply zilch.</p>
<p>There is no secret.</p>
<p>The prosecution knows where the defense counsel is going.</p>
<p>Those witnesses that were there to testify that the defense counsel shredded on cross-examination and now get the shading that is indicated by Judge Leventhal in the Carsey case and it is just a different trial, and the defendant’s chances are seriously enhanced, apart --</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: With many hung jury cases that is the classical reason for granting a mistrial and permitting the prosecution to start over again?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Yes, I know that because there is no reasonable alternative.</p>
<p>The alternative as pointed out in the Arizona case and prior to that, is you are going to put some sort of influence in those juries to come out with a -- with some verdict rather than a mistrial and that is not fair.</p>
<p>But just because we do not like that aspect of it, I read this in the valued right definition or reasons, given the Arizona case, this possibility that you may convict an innocent man, that is where it comes.</p>
<p>It is that chance that he is going to tip his defense and that it runs again and that may well be an innocent man.</p>
<p>I do not see anything significant about the defendant’s right or anything else until that point when he has tipped his hand.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: And you say that never occurs until the first witness is called?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: It can occur until that time, unless he wants to voluntarily go out and do something to tip his hand, which would include making an opening statement of what he is tipping.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: And he can always save that opening statement in both federal and in Montana courts until he is ready to open?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: That is correct.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Mr. Keller, can I ask you one more question?</p>
<p>You said at the outset that, of course you did not have the benefit of Arizona against Washington when you filed your briefs and that had -- if you had, that kind of decides the whole case, but do you think Arizona against Washington helps you or hurts you?</p>
<p>I am not quite sure I understand your position?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: I do not know, either.[Laughter]</p>
<p>I want to said that you could read this later the same way Downum is being read to say, well, if this happens when the prosecutor made his opening statement, that is before my point in time and we are in trouble, but on the other hand, this Court had to know this case was pending and this Court did not say, as it had said in the past, jeopardy attaches when the jury is sworn and when you assiduously did you not say that, I have to believe that you are leaving open this very question we are here today on and I think that hinges on what is the valued right and -- and when should it have constitutional protection.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Very well, Mr. Keller.</p>
<p>Mr. Geller?</p>
<p>Argument of Kenneth S. Geller</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: Mr. Chief Justice and may it please the Court.</p>
<p>With the Court’s permission, there are two issues in this case that I do not intend to discuss.</p>
<p>First is the question of manifest necessity.</p>
<p>As we noted in our opening brief, the record in this case, does not permit a determination of a number of factors essential to a resolution on manifest necessity issue.</p>
<p>Since it does not indicate whether appellees resisted the amendment of count two of the initial information or whether they objected to the dismissal of that count or to the dismissal of the remaining counts.</p>
<p>In any event, the state appears to have abandoned that issue in this Court.</p>
<p>The second question that I do not plan to address at any length, is whether the State should be free to adopt a rule for the attachment of jeopardy that differs from the rule applicable in federal courts, is not a matter in which the Federal Government has a substantial interest.</p>
<p>It is our view, however, that there is little to justify disparity in the rule as applied to state and federal courts.</p>
<p>The Double Jeopardy prohibition of the Fifth Amendment is of course fully enforceable against the states to the Fourteenth Amendment and the time when jeopardy attaches would appear to be an essential ingredient of the Double Jeopardy guarantee rather than a mere incidental or procedural feature that may be varied without doing damage to the basic constitutional right.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: You are more or less just volunteering as if it is of no concern to the United States as a litigant, I take it?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: Well, the issue that is of concern to the United States is when this jeopardy attaches as a matter of constitutional law.</p>
<p>If the Court were then to hold that the States may be free to vary, that portion of the Court’s opinion would be of no substantial interest to the United States.</p>
<p>I would like to limit my discussion then to the essential question posed by the Court in its order of December 5th, that is when as the matter of constitutional mandate, does jeopardy attach?</p>
<p>Now, at -- at common law, as Mr. Keller has indicated, indeed even today in England jeopardy did not attach until verdict.</p>
<p>The historical record leaves little doubt that this was the understanding of the framers to the Fifth Amendment and that the Double Jeopardy Clause was not originally intended to bar the re-prosecution of the defendant whose first trial was aborted for whatever reasons, prior to verdict.</p>
<p>Despite this background, it is settled today that the Double Jeopardy Clause is more than a mere constitutionalization of res judicata principles, plus the prohibition of government appeals from acquittals.</p>
<p>The Clause also protects the “defendant’s valued right” as this Court has said in a number of occasions, to have this trial completed once it has begun.</p>
<p>In other words, a right to go to verdict and perhaps to end the dispute then and there with an acquittal.</p>
<p>Obviously, in order to protect the defendant’s interest in receiving the verdict of the first fact-finder and hence avoiding repetitive trials, jeopardy must attach at some point prior to the verdict.</p>
<p>Question then is that what point in a criminal proceeding does the defendant’s interest in going forward with a trial to its completion and not being required to begin a new, becomes sufficiently substantial to support the conclusion that jeopardy has attached and accordingly, that subsequent trial terminations must be judged under the unyielding requirements of the Double Jeopardy Clause.</p>
<p>In fixing this point, we believe that the Court should be guided by three considerations.</p>
<p>First consideration, which was alluded to earlier by Mr. Justice Stevens, is that the time of the attachment of jeopardy should represent the bright line.</p>
<p>This is an area in which the need for certainty and predictability is especially important.</p>
<p>Unless the point at which the defendant has been placed in jeopardy can be identified with precision in every trial, judges would be forced to guess as to the propriety of terminating the proceedings prematurely, in a situation perhaps not amounting to manifest necessity.</p>
<p>An incorrect assessment may leave to -- lead to immunity for a defendant whose guilt is capable of establishment.</p>
<p>For these reasons, we doubt that the tests offered by the state in this case, which appears to depend, first upon the sufficiency of the evidence that had been introduced, and now when the defendant’s lawyer may have committed himself in some way, or in Professor Schulhofer’s recent article, which is relied on by appellee Cline, which depends in part upon a necessarily subjective view of the difficulties encountered in voir dire, I doubt whether either of those tests would be workable.</p>
<p>The second, we believe that jeopardy should attach at the same point in jury and non-jury trials.</p>
<p>As this Court observed in Jenkins, the Double Jeopardy Clause nowhere distinguishes between jury and bench trials.</p>
<p>The defendant’s risk of conviction is precisely the same in either type of trial and whether the fact-finder is the judge or the jury, defendant has the identical Fifth Amendment interest in completing the trial, hopefully with an acquittal once it has begun.</p>
<p>Finally, the point that selected for the attachment of jeopardy must be responsive to the evils of re-prosecution that the Double Jeopardy Clause was historically designed to prevent, that is the anxieties, the strain and expense suffered by the defendant who is forced to undergo repetitive trials, the possibility of manipulation or harassment by a prosecutor, particularly the chance of a second opportunity to convict the defendant if the first trial is viewed as proceeding unfavorable.</p>
<p>Now, with those three underlying principles in mind, the United States believes that the Constitution does not require jeopardy to attach in any case, state or federal, jury or non-jury, until the fact-finder first begins to receive evidence.</p>
<p>Only when the government begins to meet its burden of establishing beyond a reasonable doubt that the defendant committed the crime charged, can it truly be said that the defendant faces the risk of conviction and it is the risk of conviction that this Court stated in Reid against Jones that the constitutional concept of jeopardy connotes.</p>
<p>The point at which evidence going to the general issue of guilt or innocence is produced, marks a convenient and we believe logical boundary in every criminal case, separating pre-trial preliminaries which concededly do not deserve the protections of the Double Jeopardy Clause from the trial itself.</p>
<p>The rule of jeopardy attaches when the fact-finder begins to hear evidence, which is the -- of course the rule that has traditionally been applied in bench trials, fully accommodates the defendant’s Fifth Amendment interest. Prior to the introduction of evidence, the defendant’s interest in avoiding re-prosecution ordinarily is very weak.</p>
<p>He has not yet suffered any of the strains or emotional distress associated with being forced to undergo a criminal trial.</p>
<p>Moreover, the defendant has little, if any, stake at that pre-evidentiary stage in proceeding to a verdict in order to preserve any fact-findings that the finder of the fact may have made in his favor.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: What about his interest in the particular jury that he has -- that he has chosen and that -- that is now sworn and is ready to hear evidence?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: We do not believe that the interest in preserving a particular jury for non-evidentiary reasons is an interest that is protected by the Double Jeopardy Clause.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: What do you mean non-evidentiary reasons?</p>
<p>He wants it because he thinks this is the jury that would do best with the evidence that he is going to introduce?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: Well, first objection is that, that is highly speculative.</p>
<p>At least when evidence begins to be introduced, we can assess what sort of impact it might have --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, maybe speculating, but -- but -- but the defendant has spent a long time in picking the jury and he thinks he has got a good one and the courts before its sworn, I suppose you could say, if something that blew up the trial, there would not be any Double Jeopardy attachment.</p>
<p>He -- once it is sworn, the jury processes is -- is completed -- and here is a jury that the defendant’s counsel is convinced that is going to be a very -- maybe a very biased jury.</p>
<p>He is convinced that it will be biased in his favor.</p>
<p>You -- you cannot say that it is not a substantial interest here?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: Well, I can say it is not a substantial interest protected by the Double Jeopardy Clause.</p>
<p>I can agree with you, Mr. Justice White, that it may be a substantial interest of the defendant that is entitled to protection, perhaps even a constitutional protection.</p>
<p>And if for example, a prosecutor sought to abort the trial after the jury had been selected, but before evidence began because he thought that the finder of fact would be unduly favorable to the defendant, there might well be remedies for a defendant in that situation, either under the Jury Trial Clause of the Sixth Amendment, or the Due Process Clause of the Fifth Amendment.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: But does the jury -- does the constitution guarantee the man a favorable jury or an unfair jury?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: Obviously it guarantees him a fair jury.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, the defendant is convinced that this -- he just is very convinced that this is an impartial jury and sometimes his -- his lawyer knows or have not been the impartial juries and he thinks -- but he thinks he has got one now and would like to keep it?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: I am not disputing that that maybe a substantial interest of the defendants.</p>
<p>I think the task for this Court is to determine whether that is an interest protected by the Double Jeopardy Clause instead of perhaps the speedy -- the Jury Trial Clause or the Due Process Clause.</p>
<p>I think there is substantial evidence that it is not an interest protected by the Double Jeopardy Clause.</p>
<p>For one, as you alluded to a moment ago, Mr. Justice White, if the prosecutor at the voir dire or when the venire comes into the courtroom or even after the jury has been selected, but before it has been sworn, does something to abort the trial because he thinks that the jury is unduly favorable to the defendant.</p>
<p>There is absolutely no Double Jeopardy analysis of his actions, although there may well be --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, depends on when -- that depends on when you decide Double Jeopardy -- when you decide jeopardy attaches?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: Well, the law is developed in the last 200 years to -- to now, the current understanding which I assume this Court has prepared to reassess in this case, such that in jury trial --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, I know -- well, I know, but you want to -- you want to reassess, maybe we should reassess it forward?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: I think that the Court should reassess the entire area and decide where logically in light of the history if the Double Jeopardy Clause that is --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, so far, it makes more sense -- what you have said it makes more sense to move it forward to the -- when you begin --</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: But only if --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: -- over the years than later?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: Well, I think it should be obvious, I think to the Court at this point that based upon how the Court defines the interest protected by the Double Jeopardy Clause, it becomes relatively easy to fix the point for the attachment of jeopardy.</p>
<p>In other words, if the Court finds that the Double Jeopardy Clause in fact protects the defendant’s interest in favorable jury selection, then jeopardy should obviously attach at or prior to the selection of the jury.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: I know, but you said -- you said in one of the interests protected is to save the defendant from -- from money, anxiety and time of doing -- going through it twice, and so --</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: Going through a trial twice.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well then, going through a trial twice or going through a criminal proceeding twice, and it may take a couple of weeks to select a jury?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: It maybe, it may take several -- several weeks to litigate a pre-trial suppression motion or a number of other pre-trial preliminaries, but no one has ever suggested that the defendant has a double jeopardy --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Not yet?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: Not yet.[Laughter]</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: I will not use the word that usually you -- the Judge says or the jury says, if I created the prosecution, is it satisfactory to the defense?</p>
<p>Usually, and they are right?</p>
<p>Once you have -- jury that is satisfactory to the defendant instead of -- in favor of the defendant, this applies onwards?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: Yes, significance in the use of the --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Well I mean, the point is that they always ask that question, do they not?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: I assume that means whether any of the litigants wants to exercise any further challenges for clause, whether the -- whether they do not believe that the jury that has been selected is favorable.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: You do not believe that in every case the judge turns and says this jury is satisfactory, can they use those exact words?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: Well, I am sure it varies case to case, Justice Marshall, I am not familiar with the practice in the trial courts in every state or in the federal courts, and I do not believe that that is --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Well then, have you ever seen a trial where the Judge did not say it?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: No.</p>
<p>I think what -- what is important is -- is not that the litigant has or have an attempt to pick a favorable jury, but that he had attempts as Chief Justice said, to pick an impartial jury.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Or say, historically?</p>
<p>The Double Jeopardy Clause was applicable to somebody who had been tried and convicted or tried and acquitted, he could not be tried again, and this business of the interest in going to trial before the same jury and so on was then grafted on to it and had quite a different history, did it not?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: Well, the history --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: If one looks at the Perez opinion, as I just have and realize for the first time there is no mention at all in that opinion of the Constitution itself, let alone the Double Jeopardy Clause?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: Well, indeed justice’s Story says that the first trial did not end in a conviction or an acquittal.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Precisely, and therefore one can -- one can infer that from that opinion, that he is saying the Double Jeopardy Clause is inapplicable we are -- we are --</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: I think that is correct.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: We are concerned here with something else?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: Well, the purpose of the Double Jeopardy Clause is to prevent repetitive trials.</p>
<p>That may happen by a (Voice Overlap) --</p>
<!-- unk--><p><b> Unknown Speaker</b>: Well, after a -- after a con -- or an acquittal?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: After a conviction or an acquittal, but they -- they equally happen, I assume, if partway down the trial, the prosecutor decides to abort it and start again, and as again they put --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Well, only recently is that I thought had been grafted on to the Double Jeopardy guarantee?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: Well, it was not until 1963, that this Court recognized the defendant’s interest in not having to go through it?</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Right, and as part of the double jeopardy interest?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: Right.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: And there have been -- before that, historically it had been a different interest, may perhaps protected by the Due Process Clause?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: I think that, that is -- I think that may be right.</p>
<p>That is correct, although I must say that when this notion that jeopardy attached prior to verdict crept into our law, is one of the substantial mysteries of Double Jeopardy jurisprudence.</p>
<p>We have not been able to determine when precisely the -- the thought became accepted in the United States and those courts that have applied the notion have not seen fit to explain what the rationale is that they are using to deviate from the common law.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: In the common law, as a condition precedent for the -- for any inquiry under the Double Jeopardy Clause, there would have to have been an acquittal or a conviction?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: That is correct.</p>
<p>There has to be a verdict.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: The government does not contend that that is the present state of the double jeopardy constitutional law in this country, does it?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: No, it does not.</p>
<p>We agree that jeopardy must attach at some point prior -- prior to verdict in order to preserve the defendant’s right, not to have to go through unnecessarily repetitive trial.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: And the government does agree that this valued right, whatever it is, is protected by the Double Jeopardy Clause of the United States Constitution?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: We do.</p>
<p>We agree that once we fix the point at which jeopardy attaches, any trial terminations after that point should be judged by Double Jeopardy standards.</p>
<p>Rebuttal of Robert S. Keller</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: And the government has in amicus curiae in this case?</p>
<p>Rebuttal of Kenneth S. Geller</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: Yes, it is.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: If you give that much weight to that Mr. Geller, how do you reconcile that with what Justice Black said in Wade against Hunter? What has been said is enough to show that the “defendant’s valued right” to have his trial completed by a particular tribunal must in some instances be subordinated to the public interest in fair trials designed to end in just judgments.</p>
<p>If it is totally constitutional, Justice Black’s statement is inconsistent, is it not?</p>
<!-- Kenneth_S_Geller--><p><b>Mr. Kenneth S. Geller</b>: I think that the manifest necessity notion that Justice Black was articulating in Wade against Hunter is also a constitutional notion.</p>
<p>In other words, merely finding that jeopardy is attached and that the trial has been aborted, does not end the analysis.</p>
<p>In order for the defendant to have been deprived of this Fifth Amendment rights, there also must not have been a manifest necessity before the trial termination.</p>
<p>Thank you.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Mr. Leaphart?</p>
<p>Argument of W. William Leaphart</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Mr. Chief Justice and may it please the Court.</p>
<p>The appellants in this case have taken the possession that the so called valued right to a particular tribunal is not of constitutional stature, rather it is a procedural practice, which has developed out of English common law, and the appellant has concluded that this valued right to a particular tribunal does not come into play or does not attach until after the tribunal has actually heard the defendant’s case.</p>
<p>As to the Double Jeopardy Clause, the appellant takes the position in his brief that jeopardy does not attach until after the state has presented some evidence from which the jury could actually convict the defendant.</p>
<p>The solicitor on the other hand has assumed a more moderate position and has urged this Court that jeopardy should attach no later than the swearing of the first witness.</p>
<p>I submit to the Court that the -- this -- the Court’s recent opinion in Arizona versus Washington contradicts both the position of the appellant and of the solicitor.</p>
<p>In the Arizona case, the defense counsel engaged in some references during his opening statement to inadmissible evidence and as a consequence of that reference, the trial Court had to declare a mistrial at the request of the prosecution.</p>
<p>On a Federal Habeas Corpus appeal, this Court subjected the trial court’s actions to a Double Jeopardy analysis and manifest necessity analysis and concluded that there was manifest necessity for the -- the declaration of the mistrial.</p>
<p>The import of that case lies in the fact that the -- the incident arose during the opening statements and that this Court decided that case on the grounds of double jeopardy even though the first witness had not been sworn.</p>
<p>And I submit to the Court that implicit in the Arizona decision, is a conclusion that Federal Double Jeopardy had attached, at least as early as the opening statement and of course the opening statement is prior in time to the point which has been suggested by the solicitor and is prior in time to the point which has been suggested by the appellant.</p>
<p>If, as the solicitor has argued, Double Jeopardy interest could not come into play --</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: The logic of that argument really escapes me.</p>
<p>Supposing before trial started, the police conducted an illegal search of some kind and the evidence was not introduced until just before the jury retired for the verdict.</p>
<p>Would you say, well, the jeopardy had not attached because the search occurred before?</p>
<p>I mean, you do not look at the time of the -- the time when jeopardy attaches does not depend on when the error was committed, does it?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: No, Your Honor.</p>
<p>What I -- what I am saying or what I meant to say is this the fact -- the mere fact that the Court looked at the double jeopardy problem and analyzed the case in terms of manifest necessity, meant that double jeopardy had attached at least as early as the time the error occurred.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Single jeopardy -- jeopardy?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Excuse me, jeopardy has attached at least that early. If --</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Well, I just do not understand the logic because it actually dismissed the case after two witnesses had testified.</p>
<p>So if jeopardy attaches when a witness testifies, then jeopardy is attached when he made his ruling?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Well, respectfully Your Honor, I would submit that the -- the fact that two witnesses had testified in that case is really incidental to the decision because the --</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: But is it incidental to the question when the jeopardy is attached?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: No, it is not.</p>
<p>That is what is being argued, but -- in that particular fact situation, the error arose during the opening statement and that was the sole basis of the declaration, I think, of the declaration of mistrial.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: That is true.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: But the judge did not declare the mistrial until two witnesses had testified?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: That is correct, Your Honor, but I would -- I think that the fact that he grounded that decision upon the defense counsel’s improper references during the opening statement indicates that jeopardy had to have attached at least that early.</p>
<p>If it had not attached at the time of the opening statements were made, the trial judge could have dismissed the case immediately upon the request of the prosecution.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Well, how about the several other cases where a defense counsel does not make an opening statement?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Hypothetically, Your Honor, where the defense counsel reserves?</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Yeah.</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: And you are asking when was jeopardy attached in that?</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Yeah.</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Well, if I may backtrack, I am not suggesting that the Arizona case specifically sets the time when jeopardy attaches as the opening statement.</p>
<p>I am just saying that as a minimum, it says that it had to have attached at least as early as the opening statement.</p>
<p>If I --</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Well, but supposing this -- this prejudicial argument had been made during the voir dire, which could have happened, he could have made some prejudicial remark, would you say jeopardy therefore had to attach during voir dire?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: No, Your Honor.</p>
<p>I think that the triggering factor is going to be the point in time which the particular tribunal comes into existence.</p>
<p>We are talking about a valued right to a particular tribunal and I -- I am not going to argue to this Court that jeopardy can attach, that the valued right has any meaning prior to the time that that particular tribunal is even in existence.</p>
<p>I think that that is the event which triggers the valued right.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: What is it in Arizona versus Washington that makes you say it has come into existence at the point that the jury is sworn?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: I do not -- I do not think the case goes that far, Your Honor.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: I do not either.</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: I think it only goes as far as saying that it has attached at least at the time of the opening statements.</p>
<p>It does not say how far in advance of that time.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: Well -- but I do not think then you -- you have satisfied me as to my brother Steven’s earlier question, that supposing in mid-trial after several witnesses have sworn, the trial judge grants a motion to suppress evidence as a result of illegal conduct that took place four or five weeks before the trial.</p>
<p>Now, surely you are not going to say that the double -- that the jeopardy attached at the time that search and seizure took place, are you?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: No, Your Honor, I am not.</p>
<p>I do not think that is consistent with the “valued right” concept.</p>
<p>The obviously -- the jury, the particular tribunal was not in existence at the time when motion to suppress was made, but what I am saying that I think Arizona stands for is that if jeopardy had not attached prior to the swearing of the first witness, I do not think the trial judge would have even had to concern himself with the “defendant’s valued right” to proceed.</p>
<p>He could have declared the mistrial without any concern at all for manifest necessity.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: But he had -- he granted it when two witnesses had been sworn and testified?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Well, I think that he was merely taking the prosecution’s motion under advisement while he had a chance to look up -- look up the law in the matter and I do not think that the fact was two witnesses.</p>
<!-- unk--><p><b> Unknown Speaker</b>: But meanwhile jeopardy had attached?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Well, I believe, Your Honor, in the State of Arizona, that it is attached at the beginning of the opening statements, but I do not think that the Arizona law controls when Federal Double Jeopardy attaches.</p>
<p>Arizona falls right in between the two points that are being argued in this case, but I do not think that is the controlling factor in that case, in the -- in the Arizona state.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Really I think what you are saying is that the trial judge who had to make the ruling was considering the fact that jeopardy had attached at the time of opening statements, but that was either as a matter of Arizona law or perhaps even his understanding of the Constitution, but that really does not --</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Well, it may have been his understanding of Arizona law, Your Honor, but for purposes of the Arizona decision in this Court, that -- that was a question of -- of federal law because this Court in Jorn and in Serfass had stated that the attaching of the jeopardy rule indicates the point in time when constitutional policies are brought into play.</p>
<p>I do not think we can have the State of Arizona or the State of Montana, or any other state telling the United States Supreme Court when constitutional policies were brought into play.</p>
<p>That is -- that is why I say I think it is implicit in that decision, by the mere fact that the Court engaged in a Double Jeopardy analysis, there is an implicit conclusion that federal jeopardy had attached.</p>
<p>There are, I think two other points which have been raised by my adversaries which are answered in the Arizona opinion.</p>
<p>First of all the appellant has taken the possession that the valued right to a particular tribunal is not part of the Double Jeopardy Clause, that it is a common law rule or procedure.</p>
<p>I would bring the Court’s attention to Justice's -- Justice Stevens' unequivocal statement in the Arizona opinion where he points out that the Double Jeopardy Clause embraces the defendant’s valued right to have his trial completed by a particular tribunal and I think in light of that, there is no question, but --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Well, that goes back to Jorn which in turn goes back to Hunter, I guess?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: That is Correct, Your Honor.</p>
<p>I think that the --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: It does not mean that is sound necessarily.</p>
<p>It does not mean that the two concepts do not have different historic origins?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: In fact, I would agree with that.</p>
<p>I think they do.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Right.</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: And that it had been grafted under the Double Jeopardy Clause.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: In Wade -- Wade against Hunter was a jury case or a jury trial?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Your Honor, Wade against Hunter was a Court Marshal case and I think there can be certain analogies drawn between that in the jury trial because the defendant in a Court Marshall does have some say in the picking of the -- of the fact-finder.</p>
<p>At least, I -- as I understand it you can exercise some challenges for a cause, and I think you can also exercise one peremptory challenge.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: Which was in World War II?</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: That no one have -- no one has ever done it.[Laughter]</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: I do not know, Your Honor.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Because it is not healthy.[Laughter]</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: But there is -- there is no real analogy between the composition of a Court Marshal and the composition of a jury of a trial?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Just -- just to the very limited extent that the defendant does have some say so in picking the fact --</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Theoretically?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Yes.</p>
<p>The solicitor seems to argue in -- at least in his brief, that the Double Jeopardy Clause -- the sole purpose of the Double Jeopardy Clause is to protect the defendant from multiple exposures to the risk of conviction and certainly the Double Jeopardy Clause does protect that interest, but I think that this Court in a number of opinions, up to and including the Arizona opinion, has taken great pains to point out that the clause also protects the “defendant’s valued right.”</p>
<p>And when the Court says the valued right to proceed before that particular tribunal, that includes at least three other interests that protects the defendant from the -- the danger of having to engage in prolonged period of financial and emotional burden, that protects the defendant from a prolonged period of stigma which results as a consequence of pending criminal charges and finally and very importantly, it prevents the state from using the jury as a prosecutorial tool, that is replacing one jury with another jury when it appears that the state would be unable to convict.</p>
<p>On three -- three separate places within the Arizona opinion, the Court states that every and any mistrial declaration inevitably affects the defendant’s constitutional rights under the valued right concept and I emphasize the words “any and every mistrial declaration” because I think that the use of those words points out that the interest which is being protected -- are being protected do not hinge upon in any way the swearing of the first witness.</p>
<p>We are talking about the interests which come into play as soon as that particular tribunal has been empaneled. The fact that the witness is sworn in really has -- is of no consequence in terms of the interest, which come under the valued right.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: How in the world can a man be convicted if no evidence is present against him?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Well he cannot, Your Honor, but I --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Well, then how is he in jeopardy?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Well, I am saying that this Court has interpreted the --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: I know we discussed that the last time, but the -- nobody has raised that point this time?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Well, in terms of actually being convicted, he is not in jeopardy, but I think this Court has interpreted the Double Jeopardy Clause as including a valued right to proceed before the jury first empaneled and I think that -- that -- that interest attaches immediately upon the empaneling of the jury.</p>
<p>We are talking about something broader than just the -- the mere risk of conviction.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Well, we are talking about a possibility of two or three minutes too?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Well, I think that depends on a particular case we are talking about.</p>
<p>It is conceivable that the jury could be empaneled on a Friday afternoon, you could have a weekend recess, opening statements may take a long time, defense counsel as well as the prosecution may make motions.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: And it also could be a case that is tried early on a Monday morning?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: That is correct and it may be a matter of seconds.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: And both sides waive on new statement?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: That is correct.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: That would not be much good, would it?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: What would not be much good, Your Honor then?</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: The one minute?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Well, the -- conceivably, the prosecutor can still stand up and move to dismiss the jury even though he has only got one minute to do it.</p>
<p>I think his motives are going to be pretty transparent, but he can do it.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: I am talking about an average trial.</p>
<p>The difference -- you say it has to be one witness sworn?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Well no, I am arguing against that position, Your Honor.</p>
<p>I -- I am just saying that I do not think that -- I do not think the fact that a witness has been sworn --</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: I mean, that is the government’s position?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: That is correct.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: That is right.</p>
<p>If one witness is sworn?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Right.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: And you say no, once the jury empaneled?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Correct.</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: And that could be just a few minutes?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Between those two points?</p>
<!-- Thurgood_Marshall--><p><b>Justice Thurgood Marshall</b>: Right.</p>
<p>It could be?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: It could be.</p>
<!-- unk--><p><b> Unknown Speaker</b>: Mr. Leaphart, I am still a little puzzled.</p>
<p>Let me ask what I asked you last time?</p>
<p>Why are you here?</p>
<p>Is it not Cline out of this case now entirely and is in the case moot as to him?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: Your Honor, Mr. Cline is out -- out of jail.</p>
<p>I have not -- I have not raised the question of mootness.</p>
<p>As I answered last time, I think that the -- Mr. Cline’s interest in this case lies in the fact that should this Court reverse the Ninth Circuit Court of Appeals, there is the very clear possibility that the state, if it wants to then can re-prosecute him on some of the other seven counts, which were involved in this case.</p>
<p>He -- he has a very definite interest in saying -- into the saying that the decision of the Ninth Circuit Court of Appeals is affirmed.</p>
<p>He -- he is the appellee in this case.</p>
<p>I am here merely representing him.</p>
<p>The state is the one that has chosen to appeal and from that, I gather that they still have an interest in prosecuting Mr. Cline.</p>
<p>In this Court, I -- I cannot cite the cases to you right now.</p>
<p>I have got them in my briefcase if you would like, but the case -- the Court is held on two different occasions, I think that the remedies available under the habeas corpus statutes are broader in scope and mere -- merely releasing a man from prison that it can rectify the -- the situation at hand.</p>
<!-- unk--><p><b> Unknown Speaker</b>: But we are familiar with those cases, but I just wondered what substance are left in your -- in your case?</p>
<!-- W_William_Leaphart--><p><b>Mr. W. William Leaphart</b>: My time is up.</p>
<p>Thank you.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Mr. Moses?</p>
<p>Argument of Charles F. Moses</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: Mr. Chief Justice and may it please the Court.</p>
<p>May I suggest to the Court a different area for discussion?</p>
<p>Justice Stewart brought up the issue of the origin of the valued right.</p>
<p>I think that the Fourteenth Amendment to the Constitution is one of the important issues in this case.</p>
<p>I think the question that is raised here, where it says that no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, that the history of that Amendment in 1866, while through the Adamson case of Justice Black, which started the incorporation theory is a relevant issue here.</p>
<p>Should the Court adopt a position under the Fourteenth Amendment that the states should follow case by case, jot by jot, under the incorporation theory --</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: Justice Black wrote a dissenting opinion --</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: Yes, he wrote a dissenting opinion and what he did in the dissenting opinion Mr. Justice Rehnquist was to set forth all of the congressional proceedings where Bingham, the congressman in 1866 said, “I sponsored or I wrote this Fourteenth Amendment because of the case of Barron versus Baltimore which said simply that the first 8 Amendments applied only to the Federal Government.”</p>
<p>So that the construction of the Fourteenth Amendment, I think has a measure of importance here.</p>
<p>The reason that I say that because if it is in origin, a privilege or immunity that is not rare or abstract, but is something that is recognized by the courts, then that is something that should be enforced under the Fourteenth Amendment.</p>
<p>I raise that issue because I think that then, the federal and the state would have the same privileges and immunities.</p>
<p>It would be consistent with the Supremacy Clause as we understand it, the Law of the Land, the bench and the bar would know exactly what the rule was and I think that that is important.</p>
<p>The reason that I mention that is because of the second issue, under the Fourteenth Amendment, and that is not the privileges and immunities, but is the Due Process section and it seems to me as I read the cases, that we will apply to the states through the Fourteenth Amendment those constitutional rights the Court deems fundamental, and thus apply federal statutes.</p>
<p>It is a selective incorporation as I see it.</p>
<p>It seems to me that Benton versus Maryland, which is an important case on the issue of jeopardy, raises that issue of selective incorporation.</p>
<p>In other words, what we are saying is that under the Due Process of the Fourteenth Amendment is that Double Jeopardy is a fundamental right.</p>
<p>We can agree upon that, but that is not the end of the inquiry.</p>
<p>Is the time it attaches simply non-constitutional baggage?</p>
<p>If we are going to be selective in our incorporation of the first 8 amendments, and of course, that raises the question of whether it is implicit in the right given.</p>
<p>I would like to use the word parsing or pick a part.</p>
<p>Jeopardy attaches when the jury is empaneled and sworn.</p>
<p>If you just say, jeopardy attaches and leave out when the jury is empaneled and sworn, then I think the language is meaningless.</p>
<p>It does not make sense.</p>
<p>You are going to have to say that jeopardy attaches either when the jury is empaneled and sworn to make it complete or when the state says it does or when the first witness, so that I think it is implicit even under the selective incorporation rule.</p>
<p>There has been a lot of opposition to this incorporation doctrine.</p>
<p>Justice Stewart has written upon it.</p>
<p>One of the things that I think has to be decided is whether we are going to reject the incorporation theory entirely under the Fourteenth Amendment, and I think that is relevant to this particular decision.</p>
<p>The first 8 amendments are only applicable to federal proceedings.</p>
<p>Any school boy knows that.</p>
<p>States may adopt a rule and states may adopt any standard they wish, subject only to the strictures of their own state law or Constitutions in the fundamental fairness test.</p>
<p>You may want to adopt that.</p>
<p>Now, if that -- if that is done, it seems to me that we have a chancellor's foot standard and we are going back to Palko and Twining.</p>
<p>I think those are the issues in my judgment in this case is the application of the Due Process Clause, whether we are going to have complete incorporation, selective incorporation, or rejection of the incorporation doctrine. One of the difficulties, if I may add this to my argument very briefly, is that there is great uncertainty in the law.</p>
<p>Lawyers do not know how to advise their clients?</p>
<p>Lawyers do not know how to argue before the courts because they simply do not know what the law is?</p>
<p>That is why I -- I think there should be some certainty in the law.</p>
<p>We have in Montana, for instance, take Winship on reasonable doubt, it is a requirement.</p>
<p>In Montana, we do not have that rule.</p>
<p>We have a different rule, a higher probability of its existence as to one of the essential elements.</p>
<p>Which rule do you follow?</p>
<p>We have the presumption of innocence.</p>
<p>We have US versus Castles, which is a federal case in which I was involved in.</p>
<p>We have the statutory signs as waiver provision in my view.</p>
<p>We have had difficulty and I have had difficulty in another state with Brady versus Maryland. The Court has simply said, “We do not accept Brady.</p>
<p>We do not accept it, because our statute does not provide for it.</p>
<p>”It took two months to trial almost and the case was finally reversed on the basis that the Supreme Court finally straightened out, the District Court on Brady versus Maryland.</p>
<p>We are eliminating or have legislation to eliminate search and seizure in the State of Montana, almost got by in the last legislation session.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: What do you mean by that; eliminate search and seizure?</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: Well, eliminate the prohibitions of the Fourth Amendment.</p>
<p>I want to be very dogmatic about that.</p>
<p>I am not talking about eliminating the remedy of the exclusionary rules.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: You said, “Eliminate search seizure?”</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: I am saying eliminate search and seizure, now that is my opinion, my judgment.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: So, there would be no searches and no seizures in Montana?</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: There would be no -- there would be no penalty as far as Due Process is concerned with respect to how the evidence was obtained, in the courts in Montana.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: No exclusionary rules?</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: No exclusionary rules.</p>
<p>That may be a good idea, but the rule is -- the question is that we go from the very basic discovery, reasonable doubt, presumption of innocence, burden of proof, search and seizure, the rule in the State of Montana is entirely different, and we do not know as practicing attorneys, what rule do we follow?</p>
<p>Do we follow the federal rule because it is a matter of constitutional importance under the Supremacy Clause or do we follow the state statute?</p>
<p>It is a difficult problem from my point of view.</p>
<p>Now, finally, to end my statement because I wanted to address the Court’s attention simply to the Fourteenth Amendment.</p>
<p>Let me end by saying that I disagree with my friend, Mr. Keller.</p>
<p>I -- in the last two years, I have decided that I make all opening statements at the beginning of the case.</p>
<p>I just had a murder case with a battered woman syndrome and I wanted the jury to hear about the battered woman syndrome at the earliest possible time before the shooting in the back testimony came to the floor.</p>
<p>I had a good reason for it, but I am now almost exclusively making opening statements.</p>
<p>Secondly, it is true in the practice in Montana that the judge is now permitted to give instructions to aid and assist the jury in the fair consideration of the case as they sit there, and that is a good idea and that occurs before the first witness is sworn.</p>
<p>My conclusion to that Court is this.</p>
<p>The rule I think is of constitutional significance as a matter of fact, what I would like to do if I may -- let me read you an opinion in order that I think would be appropriate in this case.</p>
<p>“The Double Jeopardy Clause of the United States Constitution is a fundamental constitutional right.</p>
<p>Jeopardy, as we have said, attaches when the jury is empaneled and sworn.</p>
<p>Anything in the Constitution or laws of any state to the contrary notwithstanding, the decision is affirmed.”</p>
<p>That is what I would propose.</p>
<p>Thank you, gentlemen.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Let me ask you just one question?</p>
<p>When you spoke of the judge giving instructions, you are speaking of preliminary limited instructions about the burden of proof in the order of trial, not a -- not a complete instruction on the law of the particular case?</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: In essence, that is correct Mr. Chief Justice.</p>
<p>What the judge does now under the current practice, is simply give the jury those necessary instructions that it feels is appropriate to guide the jury under the -- as it sits there.</p>
<p>For instance, the presumption of innocence rule and that you may not form or express any opinion as to the merits of the case, that you are the sole judges of the credibility of the witnesses, things of that kind.</p>
<p>So they really know what they are supposed to do, but that occurs after the jury is empaneled and sworn and before the first witness takes the stand.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Very well.</p>
<!-- Lewis_F_Powell--><p><b>Justice Lewis F. Powell</b>: Well, may I ask this question?</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: Yes sir.</p>
<!-- Lewis_F_Powell--><p><b>Justice Lewis F. Powell</b>: My recollection is the information in this case was dismissed solely because of a typographical error in date?</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: No sir.</p>
<!-- Lewis_F_Powell--><p><b>Justice Lewis F. Powell</b>: What was it dismissed for?</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: That was only one -- that was only one of the grounds for dismissal, Mr. Justice Powell.</p>
<!-- Lewis_F_Powell--><p><b>Justice Lewis F. Powell</b>: That was a ground for dismissal of one of the counts?</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: Of one of the counts, yes sir.</p>
<!-- Lewis_F_Powell--><p><b>Justice Lewis F. Powell</b>: Right.</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: There were five other counts that were good.</p>
<!-- Lewis_F_Powell--><p><b>Justice Lewis F. Powell</b>: Right.</p>
<p>Well Judge Tuttle characterized that as I recall as a tactical stroke.</p>
<p>Were you a counsel at the time?</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: I was counsel at the time and it was not a kind of tactical stroke, sir.</p>
<!-- Lewis_F_Powell--><p><b>Justice Lewis F. Powell</b>: May I ask what prompted that you to wait until after the jury was sworn?</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: We have -- let me tell you exactly what happened.</p>
<p>I had raised the issue as to the -- whether the offenses or any of them stated a -- a criminal offense as to all of the counts.</p>
<p>I had raised substantial objections and they were overruled without the court ever reading the brief.</p>
<p>Once, the jury was empaneled and sworn, I raised that same issue again, the same issue and I still contend that there were no sufficient grounds to state a public offense as to all of the counts.</p>
<p>At that particular time, I think they moved to amend, to have a particular date and of course, I objected, but my objection and I -- I also requested at that time that we go to the Supreme Court and have this all resolved, but the Supreme Court when the application was made by the attorney general to go to the Supreme Court after they refused to allow the amendment and some other changes, the Supreme Court refused and said, “Go back and try it.”</p>
<p>Then they came into court and said, “We are going to dismiss them all, all of them.”</p>
<p>I think there were five other good counts, at least, then they dismissed them all and were starting again and the record is plain that I objected in writing -- I am sorry, I did not object in writing, the record is clear that I objected at that time.</p>
<p>So it was not, to that extent a -- a tactical maneuver on my part, Mr. Justice Powell.</p>
<p>I was there because the -- the charges were not any good in my judgment and I wanted to go to the Supreme Court to prove that.</p>
<p>The Supreme Court would not hear it and during that course of time, they moved to amend and of course, I objected them -- to them doing anything.</p>
<p>That is the way it occurred.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Mr. Moses just to follow up on Justice Powell’s question.</p>
<p>In your judgment, if the case had gone to trial on the original counts and there had been a verdict of guilty, would there have been reversible error in the record and --?</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: In my judgment, yes.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: And then what would have happened?</p>
<p>Then if that -- if that had happened, then there would have been a reversal and a new trial, is it not?</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: You bet, that is exactly correct.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: So you would have -- your client would have had to stand trial twice if you are --</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: That -- that is precisely correct, sir.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Well then how was your client in terms of Double Jeopardy policy and valued right and all the rest that we have been talking about, how was your client hurt at all by having the dismissal take place right at the outset of the proceeding, instead of going through a whole trial on appeal and ending up in the same place?</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: I have a personal prejudice about that, sir.</p>
<p>In my -- in my opinion, being the trial counsel, the reason overall that it was dismissed, they had five other good charges.</p>
<p>The reason that it was dismissed is that the prosecution felt they had a lousy jury.</p>
<p>I thought we killed them on voir dire as to what the issues were and then we had a good jury.</p>
<p>This is at the capital where you have state employees and -- and things of that kind and in selecting the jury, I thought we had a good jury.</p>
<p>I think the prosecution thought they had a lousy jury and which --</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: You did not have a good enough jury to insist on your right.</p>
<p>Did you try to go -- did you want to go to trial on that, I am trying to remember now?</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: Yes.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: You did, yeah.</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: Yes, I was insisting we go to trial.</p>
<p>I raised my objections, I -- judge turns me down.</p>
<!-- unk--><p><b> Unknown Speaker</b>: I thought you moved to dismiss --</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: I thought you moved to dismiss the --?</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: Oh! Yes.</p>
<p>I -- I had moved to dismiss because of the fact that they did not state a public offense.</p>
<!-- Lewis_F_Powell--><p><b>Justice Lewis F. Powell</b>: Right and you objected also and when the counsel for the state raised to correct --</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: Oh! Yes, yes sir.</p>
<p>I sure did.</p>
<p>That is exactly what I did.</p>
<p>It was my judgment at that time that those counts did not state a public offense and I moved to dismiss at very stage of the proceeding.</p>
<p>If I had had jeopardy in mind, I would have waited until the first witness was sworn.</p>
<p>I would not have raised the issue then.</p>
<p>I am silly.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: But you are not insisting on going to trial.</p>
<p>Very understandably, you were doing everything you could do to get the indictments dismissed, so you would not go to trial?</p>
<!-- Charles_F_Moses--><p><b>Mr. Charles F. Moses</b>: You bet.</p>
<p>Yes, I was trying to get the -- every stage of the proceeding, I was objecting, and that was my purpose.</p>
<p>Thank you.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Very well.</p>
<p>Mr. Keller?</p>
<p>Rebuttal of Robert S. Keller</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: I do not think I saved much time, Mr. Chief Justice.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: You have three minutes left.</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: The Wade against Hunter, Justice Murphy with Justice Douglas and Justice Rutledge agreeing in dissent said in the first paragraph, “We agree with the Court below that in the military courts as in civil, jeopardy within the meaning of the Fifth Amendment attaches when the court begins the hearing of evidence” on any thing, question that Court Marshal that you were not talking about a jury or picking a jury, that was prior to 1951 and you just know they did not have jury right.</p>
<!-- unk--><p><b> Unknown Speaker</b>: That is correct.</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: The only other points are just in passing, any opening statement that my colleague, Mr. Moses makes to a jury does not tell the prosecution anything.</p>
<p>I know that he does not and he might have a battered woman syndrome, he might have anything else, but he does not tell the prosecution anything not uncommonly, not until on appeal, but frankly so, yeah there is no problem there and we do not have that back --</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Mr. Keller, may I ask you a question please?</p>
<p>Just on the point that Justice Powell and I were inquiring of your adversary, what is the state’s position on whether or not there was a manifest necessity, just so we have it clear on the record?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: At that particular time?</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Yes.</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: I did not think that there was a manifest necessity question.</p>
<p>I can recall that Justice Rehnquist asking me, maybe you might and I would disagree on this, well-taken, but at that particular time and we did not participate in the trial of this, at that particular time, we had three counts that were defective just because of a typographical error.</p>
<p>What Mr. Moses is talking about is he thought all nine were defective, aside from the typographical error just as a matter of law.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Because they did not charge criminal offenses under Montana law?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: That is correct, but as to these three counts that had to get thrown out, they charged an offense that was not an offense any longer.</p>
<p>The -- the law had changed in Montana, Criminal Code of 1973 took effect on January 01, 1974 and these three counts said the crimes in 1973, language occurred in January and February 1974.</p>
<p>Well, they could go to trial.</p>
<p>They could go anywhere and they could never convict on that, but you did make a good point and Judge Bennett will never make a mistake again.</p>
<p>He will grant the amendment, have the trial and get reversed, and we will try it again.</p>
<p>We will not talk Double Jeopardy and you know that is terrible.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Mr. Keller I just -- I just want to be sure I understand.</p>
<p>Is it clear then in the state’s view that the trial judge had power to amend the counts and there was no necessity for dismissal, is that what you are saying?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: I do not think that he did have that power.</p>
<p>I think that change was substantive and our statute at that time prevented the substantive change. You are going to charge the defendant with picking up an extra year of time to defend on its face, not really, but you were on its face, it was there.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: Let me ask the same question again.</p>
<p>In your view, was there or was there not manifest necessity for dismissal of the charges?</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: To dismiss those charges, yes, I think there was on those three, but not on the remaining six.</p>
<!-- John_Paul_Stevens--><p><b>Justice John Paul Stevens</b>: I see.</p>
<p>So the remaining --</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: That is where the hang up came and he got convicted oddmently (Ph) of one of the three that was corrected.</p>
<p>He got charged at the second trial with one of the six that was not effected and one of the three that was corrected and found guilty of one of the three that was corrected.</p>
<p>Prosecution at that time did not want to go ahead on those six because they were not that good, but they would have sure come under Ash v. Swenson.</p>
<p>It would have been clerical staff of court as a alleged because it all took the same period of time.</p>
<p>They all have to do with one woman and one transaction literally.</p>
<p>They were spreadeagled at the time whether they knew it or not, and it may have not been a tactical stroke, but sure it was an awfully smart move.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Thank you Mr. Keller.</p>
<!-- Robert_S_Keller--><p><b>Mr. Robert S. Keller</b>: Thank you, Your Honor.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Thank you gentleman.</p>
<p>The case is submitted.</p>
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Attribution:&nbsp;</div>
The Oyez Project </div>
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Sun, 08 Aug 2010 19:16:34 +0000admin62275 at http://www.oyez.orgPalmore v. United States - Oral Argumenthttp://www.oyez.org/cases/1970-1979/1972/1972_72_11/argument
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Case:&nbsp;</div>
<a href="/cases/1970-1979/1972/1972_72_11">Palmore v. United States</a> </div>
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Transcript:&nbsp;</div>
<p>Argument of Frank F. Flegal</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: We will hear arguments next in 72-11 Palmore against the United States.</p>
<p>Mr. Flegal.</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Mr. Chief Justice, may it please the court.</p>
<p>On February the 1st, 1971 the District of Columbia Court Reorganization Act became effective.</p>
<p>Among other things that act created the Superior Court of the District of Columbia, a court and its judges hold office for limited terms and vested jurisdiction in that court to hear and determine certain felony charges brought by the United States of America against persons accused violating acts of congress applicable exclusively to the District of Columbia.</p>
<p>The courts below and the parties have tended to call such acts, local statutes.</p>
<p>On February 23rd of 1971, appellant was indicted in the Superior Court for violation of such a statute.</p>
<p>The crime of carrying a dangerous weapon, in this case, a gun without a permit having been issued in accordance with law.</p>
<p>Since appellant had previously been convicted of another and an unrelated felony and that prior conviction is not an issue here.</p>
<p>The charge against him was a felony charge, if convicted he stood do face imprisonment for up to ten years.</p>
<p>Prior to trial appellant challenged the jurisdiction of the Superior Court.</p>
<p>He claimed that he was entitled to have his case heard and determined by a constitutional court that is of course, a court was then been established in accordance with Article III and presided over by a judge holding office during good behavior.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: And his claim was based upon the fact that this was a felony charge?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Yes sir it was.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: In other words, he at least implicitly conceded that he could have been charged honest to mere charge?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Yes, indeed so sir.</p>
<p>We make a distinction here and let me just briefly elude to it now and then when we get to the argument address it in full.</p>
<p>Historically, as this court is dealt with in the Article III jury trial cases.</p>
<p>There has been a distinction between minor or petty cases.</p>
<p>Historically, as this court pointed out in the Clawans case, 300 United States.</p>
<p>English judges prior to the adoption of the constitution, judges not of the general jurisdiction of England, held and heard and determine minor matters involving up to one year imprisonment.</p>
<p>Congress has always assumed that to be the case in the District of Columbia and indeed nor has magistrates in the several states, non Article III officers hearing such minor matters.</p>
<p>For purposes of our argument we assume that there is a class of matter and we assume although this court has never decided that a misdemeanor and one year is the appropriate constitutional judgement.</p>
<p>There is a historical basis for that.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: There maybe a difference between a “petty offense” and misdemeanor.</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Indeed there maybe --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Any event, you say that maybe that whatever the--</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: In any event whatever the law and event, a felony is our proposition in this case.</p>
<p>After that motion was overruled, the trial court proceeded to consider appellants motion to suppress evidence which was based upon appellants Fourth Amendment contention that the method by which police officers obtained the evidence in this case, the gun, was a result of an unreasonable seizure of appellants purse.</p>
<p>The court heard evidence and I put aside for the moment the details of that evidence so that it would be freshly at hand when returned to the Fourth Amendment argument, Fourth Amendment position later in the argument and having heard that evidence overruled appellant's objection.</p>
<p>Appellant elected to stand on the legal issue which had been raised and trial by jury having been waived, the trial court found appellant guilty of the charge against it.</p>
<p>He was subsequently sentenced to from 2-6 years in prison.</p>
<p>Execution of the sentence was suspended except for 180 days imprisonment on condition of six years probation.</p>
<p>An appeal was taken to the District of Columbia Court of Appeals and that court affirmed the judgement.</p>
<p>Thereafter appellant review was sought in this court.</p>
<p>We sought review by filing a notice of appeal in the District of Columbia Court of Appeals and docketing a jurisdictional statement in this court.</p>
<p>On October 10, 1972 this court entered an order placing this case on its hearing calendar but postponing the question of jurisdiction until the argument of the case on the merits.</p>
<p>Accordingly I return to that threshold question.</p>
<p>Strictly speaking of course, it is not a question of this courts appellate jurisdiction.</p>
<p>For all parties can see that this court has a jurisdiction to review the judgement of the District of Columbia Court of Appeals in this case.</p>
<p>The question is rather a statutory question.</p>
<p>The mode or the manner by which we should have invoked this court's appellate jurisdiction.</p>
<p>It is our contention that when congress as it has done in the District of Columbia Courts, creates a local court system and vest that local court system with jurisdiction to hear local matters and provides that appeals from the highest local court shall we taken to this court in accordance with the general provision of section 1257 of the Judicial Court.</p>
<p>Locally applicable laws constitute a law of a state within the meaning of 1257 subdivision 2.</p>
<p>For that proposition we place of course, principal reliance on the analogous case of Balzac against Porto Rico, decided 50 years ago where congress provided the judgments of the Supreme Court of Porto Rico would be reviewed in this court, in accordance with 1257 and the issue in Balzac was whether or not a statute applicable exclusively to Porto Rico was there by dimmed to be a statute of a state.</p>
<p>In a unanimous opinion written by Chief Justice Taft, this court held that it was.</p>
<p>Now it's quite as the government points out that the legislature that had enacted the statute in Balzac was a territorial legislature not the United States congress but that fact played no articulable part in this court's opinion.</p>
<p>Rather the Chief Justice focused on the manifesting intent of congress.</p>
<p>A point of course, which this court reiterated just last month in the Canter case, the intent of congress in enacting and providing for such a method of review.</p>
<p>For reason set forth in Balzac and articulated in our opinion, we think this case is properly heard on appeal.</p>
<p>At the outset of course, by the filing right jurisdiction papers and again in our brief we have invoked in the alternative, the certiorari jurisdiction of this court in the even that we are on.</p>
<p>But of course, having the case here whether by certiorari or appeal does not answer the question which was raised and overruled in the trial court.</p>
<p>Was appellant entitled to have his case heard and determined by a constitutional court?</p>
<p>Article III discussions tend frequently to become academic and there are several nuances in Article III issues and the parties have pursued those in their brief.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: You don't submit or do you that the answer to the first question necessarily controls the answer to the second?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Here is nothing to do with the answer of the second.</p>
<p>First question is purely a statutory construction.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Whether it's an appeal or –</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Certiorari –</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Certiorari here and that's basically a question unrelated to --</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Completely unrelated, it's the mode of seeking review the statutory mode and it's purely a question of statutory interpretation.</p>
<p>On the merits however, it.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: (Inaudible)</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: For purposes of a statute, Your Honor, not for purposes of Article III section one of the constitution.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: I mean that’s the question.</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: That is the question.</p>
<p>Excuse me, of course, that is the question on the first proposition the appeal as opposed to certiorari.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: (Inaudible) different answer?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Indeed I answer.</p>
<p>Indeed I am suggesting.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: You do?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: I do get different answers and I say that because under the statute the question of course is purely one of statutory construction what did congress intent under Article III of the constitution.</p>
<p>We have of course a constitutional issue what did the framers mean and it is not conceded.</p>
<p>The Government does not oppose the proposition, that went in the meaning of Article III of the constitution and act of congress that will be if one applicable only to the District of Columbia is of course, a law of the United States.</p>
<p>That's the only basis by which this court's appellate jurisdiction from the beginning of the republic with respect to local District of Columbia matters not otherwise involving a constitutional issue can be sustained.</p>
<p>Our preposition is that the article III protection for the independence of the Federal Judge that is the good behavior tenure and the associated constitutional restrictions control of course, important rights on the judge.</p>
<p>But principally an important claim for purposes of this case, they also confer rights and benefits and safeguard on the litigants.</p>
<p>Now that is a preposition which the government contested at the outset of this case.</p>
<p>At the threshold stage, the government suggested that we did not have standing to raise this issue.</p>
<p>They have abandoned that in their brief and I think properly so.</p>
<p>This court has addressed the meaning of the good behavior clause as it effects litigants.</p>
<p>Time and again, and what I don't want to deliver the point, I want to emphasize two cases on which we principally rely and that is of course, the O'Donoghue case where this court trace the meaning of Article III with respect to litigants.</p>
<p>In O'Donoghue this court referred for example, to one of the specific complaints which desires of the declaration had made.</p>
<p>The judges were being limited in their tenure and having their salaries reduced and in O'Donoghue and again in Lark and the court-martial cases.</p>
<p>Parker and O'Callahan.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: O'Donoghue, he is a judge, was he not?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: O'Donoghue was a judge, Your Honor.</p>
<p>However Toth and O'Callahan were litigants as was Larkin the litigant in the companion case in Glidden v. Zdanok and in Lark, this Court referred to the protection designed in part for the protection of the litigant and that is the protection which we saught.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: That was Justice Harlan's opinion?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: That was the plurality opinion, yes, Your Honor.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Yes.</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: The plurality opinion by Mr. Justice Harlan.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: It was not a Court opinion.</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Not a Court opinion in Lark.</p>
<p>Of course, it is Mr. Justice Black's plurality opinion in part, a Court opinion in O'Callahan, all dealing with litigants and all referring to the right by the contort on the litigant.</p>
<p>Now, of course, there can be no contention here as was the issue in Lark that appellant did receive an Article 3 Judge.</p>
<p>The judge that presided in our trial holds office for 15 years, not good behavior.</p>
<p>He is not subject to protection from diminishment of his salary and he is not answerable only to the other branches of Government through the impeachment process, he is answerable to a commission.</p>
<p>The Commission on Judicial disabilities and tenure which consists of five members, three of them are appointed by the President of the United States.</p>
<p>The fourth by the Mayor Commissioner of the District of Columbia who in turn, of course, is appointed by the President and the fifth, by the Chief Judge of the District Court.</p>
<p>Any four members of that Commission have power after holding appropriate proceedings to remove the judge and if he is removed, if a Commission Order is entered, his salary instantly stops, pending his resort to judicial review and his judicial--</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: In general, is this statute to somewhat like that of California like in the other states?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Somewhat, yes, quite like a state, Your Honor but of course, totally foreign to Article 3.</p>
<p>The review is sought by firing and Notice of Appeal with Your Honor, who is there upon called to designate a special three-judge tribunal consisting on Circuit and/or district judges to finally hear and determine.</p>
<p>So, thanks to the right we claimed.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: Mr. Flegal, you say totally alien to Article 3.</p>
<p>Are you suggesting that the good behavior or language of Article 3 could be implemented only by the process of impeachment?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: At least with respect to the other two branches of Government, Your Honor.</p>
<p>It is not add issue in this case as to whether within the judicial branch the chamber problems, whether there is within the judicial branch some power of superintendence of the performance of lower court or inferior judges.</p>
<p>Our proposition is that the impeachment clause is the only way the other branches of Government can oversee the performance of judges.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: That really is basically unanswered question, isn't it?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Oh, of course, of course and it is a question which is not raised in that case.</p>
<p>There is no question here that the judicial disabilities and tenure commission is a body of good behavior judges but our proposition turns on the other two branches of Government, not the judiciary, Your Honor.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Well, even the first, even these are the ways the other two branches of Government, it is not a wholly established--</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: It is not a wholly established principle, that's right and so--</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: And further, it is conceded that these are not articles three judge --</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Precisely, Your Honor, precisely and of course, there is no holding --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Consensus conceded, there is no need for you to so many time proving that part.</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Yes, the question then arises, are we entitled to this right?</p>
<p>If Article 3 safeguards and benefits mean anything, if the founders did not accomplish a fruitless act in so far as litigants are concerned, then of course, we contend that the felony class of case has to be included within these protections.</p>
<p>In other words, if anyone is to get these benefits other than perhaps judges, if any litigant is a felony litigant must have them because no other place that we can conceive would rise to greater constitutional dignity.</p>
<p>Perhaps others, perhaps constitutional questions would be similar but nothing would be higher.</p>
<p>Then why, according to the courts below and the Government are we not entitled to this constitutional protection.</p>
<p>The Government suggests that there is no requirement in Article 3 that Congress afford this constitutional right to any litigant and the government supports this proposition by suggesting that with respect to at least any one of the enumerated legislative powers of Congress and this is an argument which is not limited to the District of Columbia, either in the district or in the several states, Congress may create a so-called legislative court, a non-constitutional court and thereby deprive us of the benefits and safeguards to which this Court has repeatedly referred.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Now you emphasize these benefits and safeguards but those are benefits and safeguards that most of the citizens and most of the states do not have.</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Oh precisely, it is not a Fourteenth Amendment benefit and safeguard at all, Your Honor and we don't contend that it is.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Yeah, that is what made me wonder about your great emphasis on it since most of the 200 million people in the country are subject to it.</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Right, our contention, of course, is that the original constitution and certain protections in the first Ten Amendments, for example, grand jury indictment Article 3 in Sixth Amendment trial by jury are of course rights which are afforded litigants when the Federal Judicial powers brought to bed, not necessarily required under the Fourteenth Amendment in the States.</p>
<p>We make no contention that there is anything fundamentally unfair in the Fourteenth Amendment sense about having judges with limited tenure.</p>
<p>Our proposition is the framers gave a right in Article 3 beyond that, which Fourteenth Amendment due process would require to be afforded.</p>
<p>Government says that because under the supremacy clause, Congress could argue and though require State courts to hear and determine federal felonies that’s the end of the inquiry.</p>
<p>If they can require this case to be heard in a State court, the Government argues.</p>
<p>Then of course, a State court judge following up on Your Honor's proposition would not hold life tenure and why are we entitled to it?</p>
<p>I suggest the distinction which Your Honor's question focuses is precisely the fallacy of the Government's argument.</p>
<p>In the first place, when a State court hears a case, whether or not that case arises under State law or arises out of an active Congress which the State is enforcing under the supremacy clause, the State is exercising the State's judicial power, not the judicial power of the United States and Article 3 by its terms is a limitation on Federal not State judicial power and taken one step further, the proposition that was addressed by the Chief Justice's question, the Government's position puts Federal Courts on the plain of the Fourteenth Amendment.</p>
<p>The Government's argument carried to its logical extension, create a non-article 3 court because you could create a state, you could require a State court to do it, means that any right that a federal defendant has that a Fourteenth Amendment defendant in the State court does not have could be deprived and I don't think that is the law, I don't think the Congress can deprive a federal litigant of a grand jury enticement, even though a state may not have to provide it or of an Article 3 jury or of an Article 3 judge.</p>
<p>What then does the Government argue beyond that?</p>
<p>The Government relies, of course, on the legislative court cases.</p>
<p>The Government says that there is a judicial power outside of Article 3 which is co-extensive with that conferred in Article 3.</p>
<p>This Court has never so held, this Court has never so held.</p>
<p>In the permanent part of the United States, this Court has always carefully looked at the nature of the matter being adjudicated by the so-called Legislative Court and if that matter was a subject for which the litigant had to right to claim judicial determination, if it was subject to being disposed off by exercise of another power, legislative or executive, then the Court has said, it is permissible to have the matter adjudicated in a Legislative Court.</p>
<p>There has never been even a piece of dicta in one of this Court's legislative court cases which would suggest that a non-article 3 court could hear and determine a felony and impose a felony punishment.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Back in the days when-- whether now the interior states of the United States with territories, Utah and so on, the territorial courts out there, of course, trial felonies including capital offenses, were those are Article Three Judges?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: It is an interesting question on theory, Your Honor.</p>
<p>Justice Harlan and his plurality opinion in Glidden against Zdanok said yes, they were, that they were Article 3 judges exercising Article 3 judicial power but exempt because of the peculiar temporary status of the territories from Article 3 tenure requirement.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: What’s exactly? [Voice Overlap]</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: I think what it means –</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: I joined that opinion, but what, maybe I knew what it meant when I joined that.</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: I think what it means Your Honor.</p>
<p>I think what Justice Harlan had in mind was the nature of the matters they were determining, where the kind of matters including felonies which could only be adjudicated by an Article 3 court.</p>
<p>Therefore, they had to be exercising the judicial power of Article 3.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Is that a circular argument?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: That is right.</p>
<p>He then said, however, because of the temporary status of the territories, they were exempt from the good behavior clause.</p>
<p>That more recently, this Court in the Carter case and back in O' Donoghue said, they weren’t Article 3 Judges at all.</p>
<p>They were always Article 4 judges exercising the power conferred upon Congress under the territories clause, the acquisition clause outside of and this we think is the important point in this case.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: How, in fact, were those judges nominated and appointed and what tenure did they have?</p>
<p>Did they not guarantee--?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Various proposals had been used in the different territories, Your Honor.</p>
<p>Sometimes, the President appointed and Congress confirmed and other times, local legislatures or the territorial Governor confirmed the territorial judges but they all said, for limited terms of office.</p>
<p>At the present time, we have several kinds of territorial judges.</p>
<p>Those of Puerto Rico are appointed by the President with the advice and consent of the Senate and hold their office during at least statutory good behavior and yet as the government has pointed out in its brief out in Samoa, for example, the President of the United States appoints the officer or official to exercise the judicial power.</p>
<p>But the critical point and why we distinguish the territorial court cases is all of those have dealt with temporary necessity out in non permanent parts of the Federal union.</p>
<p>Argument of Unk</p>
<!-- Unk--><p><b> Unk</b>: And like subpoena?</p>
<p>Rebuttal of Frank F. Flegal</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: I beg your pardon.</p>
<p>Rebuttal of Unk</p>
<!-- Unk--><p><b> Unk</b>: Like subpoena?</p>
<p>Rebuttal of Frank F. Flegal</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Yes, Your Honor.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: From Alaska, when did we buy Alaska from Russia?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: A way back Your Honor.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: And they continued to the temporary status for about a hundred and some years.</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Right, perhaps I should have prefaced my statement as constitutional temporary status.</p>
<p>In other words, the first three articles of the constitution which include the states and the District of Columbia, that's the permanent union.</p>
<p>Then the territories may or may not join that union either as states or perhaps under some other arrangement.</p>
<p>But until they do, they are not constitutionally permanent.</p>
<p>We can sale the territory, relinquish it, return it to another sovereign and so forth.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: Well, Mr. Flegal if you follow Justice Harlan’s analysis in the Glidden v. Zdanok, the litigants in these territorial courts I mean presumably the sentence is imposed on them are rather permanent, rather than temporary.</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Indeed so, Your Honor including Capital Punishment, indeed so.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: They were exempt from having no rights enforced in those cases?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: They indeed were Your Honor.</p>
<p>The litigants in the territorial court cases did not get the constitutional benefit that we seek here.</p>
<p>Now this court has rejected however the territorial court argument whenever it has been made to deprive a District of Columbia litigant of a constitutional right.</p>
<p>I go back for example to Callan v. Wilson.</p>
<p>The first case in this court dealing with the constitutional rights of the citizens of the District of Columbia, that case involved Article III, Section 2 trial by jury and the Sixth Amendment trial by jury and the argument was made.</p>
<p>The District of Columbia is like a territory there is plenary legislative power, you don't get the constitutional right and this court rejected that argument.</p>
<p>It rejected the territorial analogy in holding that Judge O'Donoghue's salary could not be reduced during his tenure in his office and as recently as last month this court distinguished the territorial courts created under Article IV from the District of Columbia courts created under Article 3.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: And was it for purposes of the Civil Rights Act?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Yes.</p>
<p>So that the point I am making is whether they were Article 4 courts exercising Article 4 powers and thereby the litigants were not entitled to claim an Article 3 right.</p>
<p>Or whether as Justice Harlan suggested in his plurality opinion in Glidden they were exercising Article III power but exempt from the good behavior tenure.</p>
<p>It does not have controlling bearing on this case.</p>
<p>Now what then is left?</p>
<p>What is left of course, is the plenary legislative power of Congress over the District of Columbia and in the course of discussing the territorial court cases, I have already outlined of course our position on that.</p>
<p>The District of Columbia is permanent, this court has already held that each time a constitutional right was claimed to be denied because to a litigant because the District of Columbia was somehow unique.</p>
<p>This court has rejected that argument.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Is that with the territory other than the District court of Columbia?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: No, not that I know off Your Honor.</p>
<p>My point is that the citizens of the District of Columbia before the Federal Courts have all of the rights of the original constitution and the amendments, whether or not the territorial litigants were deprived of the right we seek here by virtue of a Fourth Amendment theory or an article III temporary status theory.</p>
<p>But we don't think its determinative.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: You still have the, I suppose you will demonstrates that the law that you have issued here before the statute is being forced as law in the United States?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Yes sir, indeed so because of course that is essential to our proposition.</p>
<p>The government has not argued otherwise but let me just briefly address that right now Your Honor.</p>
<p>The earliest case --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: This shows that you are talking about Article III power.</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Article III power, of course, because if our case did not arise under Article III we haven't got any way to bring direct --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: So, your case has arisen under law of the United States.</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: That's correct the only power that we seek to invoke here is the law of the United States.</p>
<p>So there was nothing to do with any other of the matters to which the judicial power extends.</p>
<p>It has been repeatedly held, both in the decisions of this court and in decisions of the early District of Columbia courts, going back as early as 1805 an opinion which Chief Justice Marshall participated while sitting on circuit that laws applicable exclusively to the District of Columbia are laws of the United States.</p>
<p>Indeed they must be so or this court could not review a local matter as it has historically done that was not otherwise presented with a constitutional issue.</p>
<p>As recently for example, as 1965 I believe it was this court decided purely on a basis of statutory construction a tax matter arising out of the District of Columbia taxing statutes.</p>
<p>Of course the only power this court would have to construe that statute and it was not a constitutional claim, it was a statutory claim would be if that' statute was a law of the United States.</p>
<p>The first chief Judge of the local courts in the District of Columbia, Chief Judge Crench (ph) who also --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Why do you say that?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Why do I say that this court could not because no other power in Article III would purport to give this court the power to construe a statute that was not a statute of the United States, a law of the United States or --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: What about in diversity cases?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Well in Diversity cases of course, then you have a power, if the case arises that diversity of citizenship, the status of the parties confers jurisdiction to deal with the case in controversy and issue between them regardless of the nature of the suit but the District of Columbia against General Motors which is the case I referred to was not a diversity suit.</p>
<p>It came to this court with no other basis for Article III jurisdiction except the construction of the statute.</p>
<p>We have collected in our brief, similar cases which go back through the 19th century and we have cited in our brief from the very first territorial court case incidentally.</p>
<p>American Insurance Company v. Canter the statement of Mr. Justice Johnson who sat on circuit on that case that if law is applicable to exclusively to the District of Columbia are not laws of the United States, this court, the Supreme Court has no power to review them.</p>
<p>And in the course of that argument he rejected that proposition and said, laws applicable exclusively to the District of Columbia are laws of the United States.</p>
<p>The question then finally arises is there something in the plenary legislative power given Congress under Section 17 rather clause 17 of the Article I, Section 8, the so called plenary power over the District of Columbia that somehow relates to the constitutional right at stake here.</p>
<p>We say not, we say not for two reasons.</p>
<p>First, that plenary power is not limited to the District of Columbia.</p>
<p>That's the power that provides not only for exclusive legislation over the seat of government but also of course Federal Enclaves and forts out in several states so that this argument is not strictly limited to the District of Columbia.</p>
<p>Beyond that this court has always held and I think correctly that when you are dealing with the exclusive and the plenary legislative power of congress that may mean congress is free of any other restriction in Article I but it does not exempts Congress from other provision in the body or the bill of rights of the constitution.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: But doesn't the constitution, the framers go to some pains to single out the District of Columbia procedure of government in defining the plenary powers that you are talking about?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Indeed they do sir.</p>
<p>And the pains that they went through is embodied in of course Clause 17 of Section 8 of Article I and that is the plenary legislative and I underlined that word legislative power given Congress that means --</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Well the state has, when we think of a state having legislative power does that not include the power to create courts?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Oh!</p>
<p>Clearly, if a state --</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: The legislative powers if the Congress include the power to create courts and define jurisdictions courts and the tenure of the judges.</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Now that's where we disagree.</p>
<p>Our proposition is the District of Columbia of course is not a state.</p>
<p>The seat of government was a state at one time and it was Maryland in Virginia.</p>
<p>It was seated to an exclusive federal jurisdiction attached in 1801 under the Session Act.</p>
<p>At that point, Congress is not strictly speaking a state legislature.</p>
<p>This court has already held that Congress is barren by provisions which don't bind a state legislature when dealing with local matters.</p>
<p>I refer again to the Fifth Amendment Grand Jury indictment and the Article III and the Sixth Amendment right to a jury trial.</p>
<p>A state legislature is not bound by those provisions.</p>
<p>Congress when acting and legislating locally for the District of Columbia is --</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: But what you are arguing now is that the defendant has the same right to an Article III judge on the same constitutional level is the right to be indicted by a grand Jury and then all the others?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Indeed sir.</p>
<p>We are claiming the same safeguard that this court referred to in the Court Martial case is starting with Toth, O'Callahan, Lark, O'Donoghue, this is the right of the federal litigant, this is the right we claim.</p>
<p>Indeed we think the Colts case which is 282 United States cited in our brief is directly on point.</p>
<p>In that case, in our local case arising out of the District of Columbia, this Courts squarely held that a local litigant was entitled to the safeguards of Section 2 of Article 3, the jury trial.</p>
<p>There is no reference in the Colts case to the Sixth Amendment, purely Section 2 Article 3.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: Mr. Flegal, under your theory, could Congress vest the appointment of judges in the District of Columbia and other one, anyone other than the President of the United States?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Yes, under the constitution, Your Honor, the appointment of officers of the judges can also be vested in the President alone, without conformation or in the head of the department.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: That is if there are inferior officers under that section of the constitution.</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Yes.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: But what leads you to say that such judges could be treated as inferior officers?</p>
<p>Is that term is used in the brief too?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: The reason that bids me to say that Your Honor is there is nothing else in the appointing part of Article 2 that distinguishes judges from those inferior officers.</p>
<p>In other words, Article 2 reads that unless Congress shall by law otherwise provide the presidential appoint and the congress shall give their advice in consent but by law congress may vest the appointment of the inferior officers in the present law and order in ahead of a department.</p>
<p>Now the final, of course, question raised by this case is whether or not, we were entitled to have our notion to suppress granted by a constitutional judge or by a non-constitutional judge, that is a separate issue and it's an issue equally dis-positive of this case; for on this record without the evidence we sought to have suppress, there is no evidence to support appellant's conviction.</p>
<p>That requires, of course, written briefly in the facts.</p>
<p>They are not in dispute.</p>
<p>At the trial court, appellant and his witness gave a different version of this encounter than did the police officers.</p>
<p>We have not contained it on appeal and we do not contained here that the trial judge was bound to believe our witness rather our position is on the police officers version of the events.</p>
<p>Appellants right to be free from unreasonable seizures was violated.</p>
<p>What were the facts?</p>
<p>Appellant was driving a car by 8'0 clock in the evening on the 600 Block of T-Street in Downtown Washington.</p>
<p>At that point in time, he had violated no law, no traffic ordinance, he had no apparent equipment defect and there is no contention, there has been no contention in any court below and there is no contention here, that the officers were possessed of any articulable facts to show that he had been, was or was about to be engaged in any criminal conduct.</p>
<p>This was a matter of a specific finding by the Court of Appeals.</p>
<p>Two plain clothes officers assign to the special operations division of the District of Columbia Police Department decided that they would stop appellant for what has been described in this record as a spot-check or a traffic-check or in one place, a rental agreement check.</p>
<p>They turned on their red lights and their siren and they force the appellant to the side of the road.</p>
<p>Appellant produce the driver's license and was asked to return to the car and obtain a copy of his rental agreement form and I interject the officers of plain, that they knew this was a rental agreement car rather a rental car because of the special serial numbers on the license plate.</p>
<p>An officer was thereupon engaged in discussing with appellant, an appellant discrepancy in the exploration date of his rental agreement.</p>
<p>When a fellow officer who had been on the passenger side of the car shining a flashlight into the interior discovered the gun, sees the gun and arrested appellant.</p>
<p>Our contention is at the moment appellant was stopped, at the moment he was stopped for this license at spot-check, his Fourth Amendment rights against unreasonable seizures had been infringed.</p>
<p>It is important to point out that in this case there is no congressional statute which on its face, purports to authorize police officers to stop citizens for purpose of inspecting either driver's licenses or motor vehicle registrations.</p>
<p>The statutes do require that citizens carry both of those documents while they operate a car.</p>
<p>And the driver's license statute does require that a citizen display that license to a police officer but it does not specifically provide that the officer is entitle to stop in order to ask for the display.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: Do you say that a police officer could not spot-check for driver's licenses in the districts?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Our position is that a police officer acting without standards set out by somebody either the legislature perhaps the commissioners or the District of Columbia or at least the higher officials in the police department.</p>
<p>He cannot be left to his own discretion to pick anybody else that he wants out for a spot-check and I say that for this reason.</p>
<p>On this record, the officer who made this spot-check said that I have no basis, I have been given no instructions as to how or whom I should stop.</p>
<p>I think it's up to me to pick people out and I pick rental cars because I think a lot of them are overdue.</p>
<p>I want to see if the man can prove that it's not overdue because it's a crime if it is overdue.</p>
<p>He also referred to the fact that on another occasion a fellow officer had found $6,000 with of narcotics in a rental car.</p>
<p>Leaving it to the unfettered and unarticulated standards of the police officer on the corner, simply poses too great and too unreasonable, a restriction with a right of free movement.</p>
<p>We don't see in contemporary urban society any great difference between walking down the street and driving.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: Oh, it's that that you've to be license to drive down the street, you don't have to be licensed to walk down?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Oh, clearly, clearly, but I am talking in terms of justifiable expectation of privacy.</p>
<p>You may will have to submit to reasonable and perhaps spot-checks but the question is not is at spot-check, that's what we think the court below made the mistake.</p>
<p>The question is, is this a reasonable spot-check and we say when it is done on an individual basis by a police officer given no standards by anybody, stopping them for his own reasons, that's what makes it unreasonable.</p>
<p>I think I should call to the courts attention, the case which was decided in the Supreme Court of Pennsylvania and we were unable to include it in our brief so that we will shortly do so in a formal amendment.</p>
<p>You know we only get the opinion yesterday, the Supreme Court of Pennsylvania, the case is Commonwealth against Swanger has since squarely so held.</p>
<p>It is simply unreasonable for police officers acting on their own to stop for spot-checks and the Pennsylvania case, if anything there was a much more compelling state requirement because Pennsylvania had a statute, the case is based squarely on the Fourth Amendment, squarely on the principles in (Inaudible).</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Presumably, excuse me.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Suppose the police department came to the conclusion that there were great many unlicensed drivers, driving unsafe cars and so they have decided to check every 50th car that a policeman could see during his hours when he wasn't otherwise engaged.</p>
<p>Would you think that would be alright?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: I think that gets to be a closer case to reasonable, Your honor, because now you have had a responsible determination by the police chief or the traffic chief whoever he is, you have given a police officer on the corner a basis to do it.</p>
<p>So he is not doing it because he thinks rental cars are overdue, because there might be narcotics and you have told them how to do it.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: But you think a random check is not permitted?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Not random -- where the basis for the random selection is left to the individual judgment of the officer that's the narrow point we make on this case.</p>
<p>We have nothing to argue here about what would happen if the police chief said every 50th car or today is yellow cars, or something of that nature, that's the next case but our case is leaving it to the unfettered judgment of the officer on the corner and we think and we think this record shows, that is simply runs too high of a risk.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: What if these – what if the department said that check all rental cars because we -- let us assume they had concluded that rental agencies were being very relax about requiring people to produce a drivers license and so they order is to check all rental cars.</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: for driver’s licenses or somewhat?</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: For everything.</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Yes, alright that becomes a different case, again, they have got a basis, they have given the officer some standards and perhaps you'd have a different case, I think it's important here to have one other factor and that is that in this case, the only safety matter really is the driver's license.</p>
<p>It was not even set forth as the officer is a basis for the stop, that document was produced at the outset of the stop, returned and appellant was not free to go at that point in time.</p>
<p>In other words, this officer on this record is using his power to make traffic checks to see whether or not you can prove a rental car is overdue and of course, it's the officers also conceded they have a list of overdue in stolen cars and this car was not on that list.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: I suppose your position would have to be the same on the search and seizure, if upon stopping the car and trying -- coming closed to it.</p>
<p>They saw a small child bound in gag in the back of the car, they couldn't see is the child and release it, could they?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Of course, our proposition in this case, Your Honor, is what they initially did.</p>
<p>We make no contention that if they had a right to stop appellant under the circumstances shown on this record that what they did thereafter made it unreasonable, our contention is they could not under the circumstances of this case stop him at the outset.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Well, how is the gun that they found in the car any different from anything else that might kind of find in the car?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: I am sorry, perhaps I didn't understand Your Honor's question.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: I said that will --</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Abounding a traffic.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: He ran his flashlight, if that's what it was in the backseat, he found that there was a person, a body, and let's say, a body of a dead person all tied up?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Right.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: On the way to just Big Bear so such thing now.</p>
<p>Do anything about that?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Not doing something about, Your Honor, the Fourth Amendment doesn't say they can't do anything about it.</p>
<p>It says that if you infringe the defendant's Fourth Amendment right in getting to the position and stopping the car, then you can introduce that piece of evidence.</p>
<p>It doesn’t mean of course you can release the child.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: If they introduce that body to charge this man with --</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: My position would be the same.</p>
<p>My position would be the same.</p>
<p>The admission of the gun or the admission of the body does not make a distinction.</p>
<p>For this reason it is our position that the judgment below should be reversed and with the court belief I will save my remaining time for rebuttal.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Very well, Mr. Flegal.</p>
<p>Mr. Solicitor General.</p>
<p>Argument of Griswold</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: May it pleases the court.</p>
<p>As Mr. Flegal has indicated, there are three separate questions in this case and I shall discuss them in the same order in which he did.</p>
<p>The first is the question of this court's jurisdiction of the appeal which was taken here.</p>
<p>That I think divides into two parts and I would make it somewhat different answer to Mr. Stewart's question about this than Mr. Flegal did, because I think one of those parts is identical with the constitutional question presented with respect to the District of Columbia court system.</p>
<p>For if it should be concluded as I hope it will not, that criminal cases in the District of Columbia can be heard only by Article 3 Courts, then these tribunals are not courts for they do not meet their requirement of Article 3 particularly as the tenure.</p>
<p>The judges of these courts are appointed for 15 year term; they don't serve during a period of good behavior.</p>
<p>This court has only appellate jurisdiction in cases such as these and if the tribunal below is not validly established.</p>
<p>It's not a court, and this court has no jurisdiction to review its decision.</p>
<p>The remedy in such a case would appear to be by writ of habeas corpus in the District Court of United States for the District of Columbia.</p>
<p>But if the tribunal below is a court then we have left the question which is discussed in the briefs.</p>
<p>Congress has power to regulate the appellate jurisdiction of this court and has done so in Section 1257 of Title 28 of the United States Code.</p>
<p>It is paragraph 2 which provides for appeal to this court to review a decision “rendered by the highest court of the state”.</p>
<p>Where there is “drawn in question the validity of a statute of any state on the ground of it's being repugnant to the Constitution's treaties or laws of the United States and the decision is in favor of its validity”.</p>
<p>Now these words alone would of course not be sufficient to support jurisdiction here for we have neither a decision of the highest court of the state, nor do we have involved the validity of a statute of any state.</p>
<p>Since the court below is one established for the District of Columbia by Congress, and the statute whose validity is question was not enacted by a state, but by Congress.</p>
<p>The first of these matters is taken care of in the statute itself by amendment which was enacted as a part of the District of Columbia court Reorganization Act of 1970 and it is printed on page 4 of our brief at the end of our printing of Section 1257.</p>
<p>It added a paragraph there which provides that for the purposes of this section the term highest court of the state includes the District of Columbia Court of Appeals, so that half of the problem is resolved.</p>
<p>But there still remains the question whether the decision below involves a validity of a statute of any state.</p>
<p>Can those words be construed to apply to a statute which was passed by both houses of Congress, signed by the President and was never considered by the legislature of any state or indeed of any territory.</p>
<p>If Congress meant that, it could have said so.</p>
<p>It knew how to do that in this very act.</p>
<p>For it did provide in Section 172-C1 of the act adding Section 1363 to title 28 of the United States Code that laws applicable exclusively to the District of Columbia should not be considered “laws of the United States” or “Acts of Congress”.</p>
<p>For the purposes of that provision, Congress made no similar provision for a special modification of the plain words, plain meaning of the words statute of any state in Section 1257-2.</p>
<p>Reliance is placed on this court's decision in Balzac against Puerto Rico decided in 1922 in an opinion by Chief Justice Taft, but that decision is clearly distinguishable.</p>
<p>In the first place there was a considerable history to the statutory provision involved there.</p>
<p>It is too complicated to give in detail here, but it is readily apparent from reading the opinion, the interrelation of then Sections 237 and 246 of the judicial code.</p>
<p>The statute with respect to Puerto Rico was linked to the provision with respect to Hawaii and Congress has said that it wanted review here which was comparable to that in cases coming from the states.</p>
<p>On that basis a statute passed by the Legislature of Puerto Rico was held to be a statute of a state for the purpose of what is now Section 1257, taken in the light of other statutory provisions than enforce.</p>
<p>But here we do not have a statute passed by a territorial legislature or any other outside body.</p>
<p>The statute here was passed by Congress itself after extensive consideration there.</p>
<p>Congress has never provided for an appeal from decisions sustaining the validity of its own statutes, and there is no reason for forcing a construction on the statute here to reach that result.</p>
<p>If that were done, defendants in the DC courts could question the validity of every provision in the DC Criminal Code.</p>
<p>And the validity of statutory provision against murder or burglary for example and then when their contentions were denied by the court below, they would have a right of appeal to this court if the validity of the statute was sustained.</p>
<p>The position for which we contend seems to be sustain likewise by this court's recent decision in Fornaris against Ridge Tool Company in 400 US at -- it begins on page 41 and the jurisdictional question is decided in a long footnote on page 42.</p>
<p>There are something’s about that footnote which are not crystal clear to me, but among other things the court did not cite the Balzac case which would seem to had some relevance, but record does make it perfectly plain that for purposes of appeal from the United States Court of Appeals a statute of Puerto Rico is not an act -- is not a statute of the United States.</p>
<p>I should think therefore that the Fornaris case together with the language of the statute itself should lead to the conclusion that this court has no jurisdiction of the appeal.</p>
<p>If there is a court below which can be reviewed here, and I think there is, then the papers should be considered by the court as a petition for certiorari.</p>
<p>And I will turn next to the second and in some way the major question involves here, although all are important.</p>
<p>The question is the constitutional validity of the District of Columbia and Court Reorganization Act.</p>
<p>In approaching this question as other questions, the Constitution should, of course, not be thought of as a mathematical equation or as some kind of computer program.</p>
<p>As it has been said in largest part, the constitution is not a charter liberties but a blueprint for a federal system of government.</p>
<p>And the District of Colombia is in someway is the keystone of the federal system.</p>
<p>Marvelous says it was the work of the founding fathers in Philadelphia in 1787.</p>
<p>There were something that they did not fully foresee or spell out in detail.</p>
<p>And it has been this court's task to work these problems out.</p>
<p>This particular area of the interplay of Article III and Article-I has a sort of academic flavor to it.</p>
<p>And it may be an understatement to say that it has not always received wholly consistent treatment from this court.</p>
<p>Decisions have been made by divided courts.</p>
<p>Sometimes without a majority and statements can be found in the opinions to support almost any position.</p>
<p>I have myself been burned once in this area.</p>
<p>In 1929, this court decide Ex Parte Bakelite Corporation in 279U.S., a unanimous decision with the opinion written by Mr. Justice VAN DEVANTER who was in acknowledge authority on constitutional procedure.</p>
<p>And I would have to differ with Mr. Flegal when he said that there wasn’t even dictum which said there could be article-I courts in the District of Colombia because that opinion discuss the question in extend so and concluded that the courts of the district Colombia where article-I courts.</p>
<p>Now it’s true that the issue in the case was the status of the then court of costumes appeals but and so therefore there is a dictum not a decision but it was clear sort of considered dictum.</p>
<p>These court where there known as the Supreme Court of the District of Colombia and the United States Court of Appeals for the District of Colombia.</p>
<p>The case also considered the court of claims and for clear and cogent regions based long outstanding president the court found all of these tribunals where validly established under article-I of the constitution.</p>
<p>It was only 4 years later that the case of O'Donoghue and of Williams came before this court.</p>
<p>I was then a junior in the department of justice and was one of those who wrote the brief for the United States in these cases.</p>
<p>The question was whether the judges of these courts were protected by the provision in article III which says that the salaries of the judges can not be reduced during their terminals.</p>
<p>Under the circumstances we did not brief the question extensively but relied on the comprehensive treatment in the Bakelite case.</p>
<p>As things worked out, this court's Bakelite decision proved to be a slander read as far is the District of Colombia was concerned.</p>
<p>For Judge O'Donoghue who was held to be entitled to his salary.</p>
<p>Judge Williams was not so fortunate but he was indicated more than 30 years later with the aid of an intervening act of Congress and establishing both the court of claims and the court of-- appeals as article III courts.</p>
<p>The Sams have been shifting in this area but I do no think that they have shifted enough or that they should be shifted enough to invalidate the District of Colombia court reorganization Act.</p>
<p>The approach in this field it seems to me it should be that suggested by Mr. Justice Harlan, in an opinion he wrote, in an analogous case.</p>
<p>The case was read in Culver involving the validity of a trial by court martial of a woman who had murdered her air force husband at an air base in England.</p>
<p>His words which I do not cite as authority but only for their indication of an approach to this case we are directly applicable to trials overseas as applied to this case they would read.</p>
<p>In other words what Ross and the Insular case is hold is that the particular local setting.</p>
<p>The practical necessities and the possible alternatives are relevant to a question of judgment on question such as these.</p>
<p>And he continued.</p>
<p>I think we have above thought is crucial in approaching the case is before us.</p>
<p>Decision is easy if one adopts the constricting view that these constitutional guarantees as a totality do or do not apply.</p>
<p>But for me the question is which guarantees of the constitution should apply in view of the particular circumstances, the practical necessities and the possible alternatives which Congress had before it.</p>
<p>The question is one of judgment not of compulsion.</p>
<p>In considering this question of judgment, we note that there is surely no constitutional requirement.</p>
<p>They are all federal cases; all federal criminal prosecutions must be heard by article III courts.</p>
<p>The constitution establishes no inferior federal courts at all but leaves that entirely to Congress.</p>
<p>In Australia, for example there are no federal courts.</p>
<p>All commonwealth criminal prosecutions are conducted in the State Courts.</p>
<p>We might well have had such a system here.</p>
<p>Expect for a period of one year, Congress provided no Federal Courts with federal question jurisdiction until 1875.</p>
<p>Even, today many federal question cases can not be heard in article III courts if they do not meet the jurisdictional amount established by Congress.</p>
<p>That means that these cases must be heard by State Courts almost none of which meet the article III test as to tenure and non-reduction of salary.</p>
<p>From the very earliest days of the republic, Congress provided for the trial of many criminal cases in state courts.</p>
<p>These are listed and cited in the two articles by trials-I which appear on page 29 of our brief and I would like to make a correction here near the bottom of page 29 as cited the Article of Charles Warren in 37 Harvard Law Review, it says page 49 and then on the next line 54, 55.</p>
<p>When I came to look at page 54 and 55, I couldn’t find anything about this and the correct reference should be 70-71.</p>
<p>As recently as Testa against Katt decided shortly after world war II, the court held the states must entertain suites are rising under a federal statue of the Price Control Act.</p>
<p>As long ago as 1828, Chief Justice Marshall recognized the necessity of legislative courts in American Insurance Company against Canter.</p>
<p>That case involves the validity of a judgment rendered by a territorial court in Florida.</p>
<p>The judges of which they are referred to in the opinion as a notary in five jurors but apparently the notary was appointed for 4 years.</p>
<p>The great Chief Justice held that the judgment was valid, saying that the Florida court could not receive article III judicial power.</p>
<p>But that it was legislative court validly established by Congress under its power in Article-I and then Article IV Section III to make laws for the property and territory of the United States.</p>
<p>It was a necessary basis for this decision that the requirements of the article III are not applicable to such courts.</p>
<p>And the intervening years there have been many examples of such courts.</p>
<p>When the territory of Orleans was established in 1804, its judges were given 4 years terms.</p>
<p>And this was generally the case during the whole process of developing the western territories of the United States.</p>
<p>This it true today of the common wealth courts in Porto Rico and of the local courts in Guam and the Virgin Islands.</p>
<p>In American Samoa and trust territory of the Pacific there are today judges for whom the statue simply says that they are designated by the president and he can and he recently has simply changed the designation and put in an another person as the judge in American Samoa.</p>
<p>This Court has many times entertained appeals from these outlined courts without any question as to their valid establishment.</p>
<p>Reynolds against the United States in 98 U.S. was on error to the Supreme Court of the territory of Utah, and the cruel and unusual punishment case, Weems against the United States in 217 U.S., was on a writ of error to the Supreme Court of the Philippine Islands not an Article 3 court.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: The case in last five or six years ago from the Canal Zone involving destruction of property down there?</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: Yes, Mr. Justice but the case was here on review of a judgment of the Court of Claims.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Now what?</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: The question arose in the Canal Zone but it was a -- if we were thinking the same case --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: I think we are.</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: It was a suit in the Court of Claims to recover from the United States on the ground that the United States had seized the building as part of the defensive zone.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: And he was doing this sorting down there.</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: I have looked for cases from the Canal Zone that got to this Court, there are many which have come to the Fifth Circuit Court of Appeals, and there are a good many where petition for certiorari have been filed and denied without not on jurisdictional ground, but I couldn't find one which had been entertained on the merits from the Canal Zone.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: How are the judges in the Canal Zone?</p>
<p>What is their tenure?</p>
<p>What are the --</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: All I can tell you is that is not life tenure.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: They are usually from Kentucky.</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: Whether it's four years or ten years.</p>
<p>We will now decide the territorial courts; there were for many years councilor courts, held to be validly established in Re Ross in the 140 U.S.</p>
<p>Now very likely the Ross case would not be followed now, because there weren't really judges there, just councilor officers and they acted as prosecutor, judge, and jury, at least foreman.</p>
<p>The objection during Re Ross is essentially one of due process though and not of Article III and this was taken care of the 1906, when there was established, the United States Court for China, with power to review councilor decisions and to handle all of these cases for all of China.</p>
<p>The judge of this court and I can tell you this, Mr. Justice, the judge of this court was appointed for 10 years, and he could be removed by the President for cause, the statute said.</p>
<p>For many years, the judge was a man named Lubinger (ph) and I used to see him from time to time in Washington.</p>
<p>Apparently, he wasn't too busy in China, he did a good deal of legal writing including some about the United States Court for China.</p>
<p>I have not been able to find in any case from that court came to this Court for review, but there is at least one reported review of a criminal case in the United States Court of Appeals for the Ninth Circuit, and this is Biddle against the United States in 156 Federal not F 2nd, 156 Federal.</p>
<p>It was a prosecution for taking money by false pretences.</p>
<p>The defendant was convicted and sentenced to a year in the jail in Shanghai, and on appeal, this was reversed not because of any defect in the court, but because the apparent court concluded that the facts alleged in the charge did not constitute false pretences.</p>
<p>Now these instances are enough to show that federal questions including criminal charges need not be inevitably heard only by courts which are established with Article III guarantees.</p>
<p>State courts do not meet that test.</p>
<p>There were United States criminal prosecutions in State Courts in the very early days of the republic.</p>
<p>Territorial Courts do not meet that test; Councilor Courts don't meet the test.</p>
<p>I might even add that regularly established United States courts do not meet that test.</p>
<p>When a judge sits under a recess appointment then I am unaware of any decision, which says that a judgment rendered in such cases invalid because the Article III guarantees have not been met.</p>
<p>Now it can be said well there is a special constitutional provision about recess appointment, but so as there are special constitutional provision with respect to the territories of the United States and with respect to the District of Columbia.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Does your position require the overhauling of O'Donoghue or not?</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: No, not at all.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Because?</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: Because we have today the United States District Court and the United States Court of Appeals, in the District of Columbia circuit, which not only are undoubtedly, but as I will show a little later are by expressed statement of Congress Article III courts.</p>
<!-- Harry_A_Blackmun--><p><b>Justice Harry A. Blackmun</b>: But as you say that -- you say these are just different courts and judges that were involved in O'Donoghue?</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: These judges here of the Superior Court are of a different court and of a different quality of judges than those involved in O'Donoghue.</p>
<p>The O'Donoghue, the district courts of the United States for the District of Columbia, the judges performed essentially the same function that the District Court judges do throughout the country.</p>
<!-- Harry_A_Blackmun--><p><b>Justice Harry A. Blackmun</b>: And you think that these particular court and judges involved here with a pass muster under O'Donoghue?</p>
<p>Even they had been before a court in O'Donoghue?</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: I feel fairly sure that Mr. Justice although it's a long time ago, and it's a hard feel to be sure of anything that at the time of O'Donoghue was decided, there was either the municipal court at the District of Columbia or the Court of General Sessions.</p>
<p>I don't know when the transition was made that, which had extensive jurisdiction including criminal jurisdiction.</p>
<!-- Harry_A_Blackmun--><p><b>Justice Harry A. Blackmun</b>: Well I think minor cases here?</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: I think limited to imprisonment for one year, but imprisonment for one year is a number of this Court's decision has hold is taken quite seriously and there was no intimation that those courts were Article III courts were anything but Article I courts.</p>
<!-- Harry_A_Blackmun--><p><b>Justice Harry A. Blackmun</b>: I question doesn’t go so far as Mr. Justice White’s, does your position required, so you think at least to some withdrawal from some of the language you note down in the brief?</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: No Mr. Justice, I do not think so at all.</p>
<p>I don't think that O'Donoghue was feeling A with inferior courts in the United States and nor with courts which were given solely local jurisdiction.</p>
<p>Now, it is said by Mr. Frankel that this case is different from all the ones I mentioned.</p>
<p>It involves a district within the confines of the United States, now embracing an area which was once within the state of Maryland and subject to all the constitutional guarantees.</p>
<p>Of course there was no guarantee in Maryland that the Judges of the state courts having jurisdiction over the general run of crimes, would have guarantees like those provided by Article III, and except for four states today, are state judges who handle all the ordinary criminal and civil business in the country do not have such guarantees, but the district is in the United States, not outside of it, and therefore it is said the Article III guarantees must apply.</p>
<p>I find it hard to say, why there is any basis for a therefore there, because it's preferably plain if the constitution is, is and always has been applicable to the incorporated territories.</p>
<p>So decided by this Court, and that any provisions of the constitution are applicable to the unincorporated territories as was involved in Weems against the United States.</p>
<p>The insurer in the American insurance case was an American corporation and it lost its (Inaudible) and Reynolds was an American citizen and he was convicted of bigamy by a court which did not have Article III guarantees and that conviction was affirmed by this Court.</p>
<p>With respect to the --</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: In that case, was bigamy a felony, I assume it was?</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: Yes, Mr. Chief Justice.</p>
<p>With respect to the District of Columbia, it was for many years thought and generally understood, and I say that without any hesitation, it was for many years thought and generally understood, I think right down to the day O'Donoghue case was decided, that all of the courts here were established under Article I.</p>
<p>It was on that basis that they were given various administrative powers.</p>
<p>It was felt going back to the very earliest decisions of this court that Article III courts could not be assigned non-judicial functions and it was on that basis that it was felt that all of the District of Columbia court must be Article I courts because they pointed members with the school board may have reviewed decisions of the patent office which did not result in final judgments and they did various things which was then understood that Article III judges could not do.</p>
<p>Certainly, this court understood that they were all Article I courts when it decided the Bakelite case in 1929.</p>
<p>Now the Bakelite case is perhaps somewhat under plate here, it's fairly far back in the stream of history on this thing, but the Bakelite case represented an understanding which I think was general over a period of 50 or 75 years.</p>
<p>It was only under the pressure of a salary reduction question which conceivably might have affected the result that this court saw a new light in 1933, and that light was not bright enough then to illuminate the court of claims.</p>
<p>Moreover, from the beginning there have always been Article I courts and judges in the district.</p>
<p>Justices of the peace, police court, municipal court and more recently the court of general session, courts with limited jurisdiction to be sure, but surely exercising judicial power including substantial jurisdiction in criminal cases and if the judicial power of the United States can only be given to Article III courts, those courts and all the acts under them were surely invalid.</p>
<p>It is said that the district is different from the territories because they were transitory while, the district is permanent.</p>
<p>It's not clear why this makes a difference under Article III, Article III doesn't say anything about transitory or permanent.</p>
<p>But as to the transitory nature of the territories, we have had Puerto Rico and Guam and American Samoa now for 75 years and the Virgin Islands now for more than 55 years.</p>
<p>It is said that they are distant, but it takes only a couple of hours to get from here to Washington -- get from Washington to Puerto Rico and the Virgin Islands and there is instant communication with all of these places.</p>
<p>The people there are citizens of United States, no less and no mores then those of the District of Columbia.</p>
<p>Moreover, the government of the district is not changeless.</p>
<p>There is a great deal of current talk about home rule and changes in Congress may mean that this is more likely than it once was.</p>
<p>There is also a talk about statehood.</p>
<p>There would be a considerable problem in achieving changes such as these, if it should be concluded that they should be brought above, if more than 50 judges on the two court's below in this case had to be provided for life and it should not be overlooked that this statute was enacted by the Congress as a result of a clear crises in the District Court of United States for the District of Columbia which was simply overwhelmed by the volume of its criminal business.</p>
<p>Practically all of the judges were sitting on criminal cases all of the time and the ordinary work of the District Courts could not be carried forward and the congress provided this means greatly to expand the number of judges in the District of Columbia assigned to deal with local crimes and civil matters of the same sort that are dealt with by state courts in the states.</p>
<p>It would be a bit bizarre if the District of Columbia became a state to say that the 50 judges of these two courts below must be given life tenure if the state court judges established by the state under statehood trying the same kind of cases would not have to have Article III guarantees.</p>
<p>The congress expressly grants the constitution, expressly grants to Congress in Article I, clause 17, power to exercise exclusive jurisdiction in all cases whatsoever and really what could be more comprehensive, exclusive jurisdiction in all cases whatsoever over the district that is accepted as a seat of government of United States.</p>
<p>This court has said that this is a plenary part, there is no doubt that the district is different from other parts of the country, both legally and practically, until recently changed by constitutional amendment residence of the district did not have that most elemental right in the democracy, the right to vote.</p>
<p>They still have no representation in the senate and no voting representation in the house, though these bodies pass the laws that govern the district and levy the taxes that are applicable here.</p>
<p>Congress has, always had special powers here and has always exercised them.</p>
<p>In this case, it moved expressly under Article I.</p>
<p>The very first section of the District of Columbia Court Reorganization Act, Section 11-101 and this unfortunately is not printed in our brief, I think it should have been and I want to bring it particularly to the court's attention.</p>
<p>The very first section provides as follow:</p>
<p>Rebuttal of Unk</p>
<!-- Unk--><p><b> Unk</b>: Well may I have that number again?</p>
<p>Rebuttal of Griswold</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: Section 11-101.</p>
<p>Rebuttal of Unk</p>
<!-- Unk--><p><b> Unk</b>: Thank you.</p>
<p>Rebuttal of Griswold</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: Of the DC court, that would be of the court Reorganization Act in the DC court.</p>
<p>It provides that the courts of the Districts of Columbia are as follows, established under Article III.</p>
<p>1. The Supreme Court of the United States.</p>
<p>2. The United States Court of Appeals for the District of Columbia Circuit.</p>
<p>3. The District Court of the United States and then continuing quoting the statute.</p>
<p>Established under Article I.</p>
<p>1. The District of Columbia Court of Appeals.</p>
<p>2. The Superior Court of the District of Columbia.</p>
<p>Thus Congress made it explicit that it knew it was acting under Article I that it intended to act under Article I and that Article I was the basis for the authority which it was seeking to exercise in establishing the two courts below in this case.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: We'll resume there after lunch, Mr. Solicitor General.</p>
<p>Mr. Solicitor General, you may proceed.</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: Before resuming the main threat of my argument, I would like to refer to a memorandum which Mr. Flegal has quite property filed with the court, calling attention to a new edition of the Hart and Wechsler's casebook about federal courts in particularly to a paragraph of a note which appears on page 397 of that note.</p>
<p>I would like simply to suggest to the court that they read the entire note and not just that paragraph on page 397.</p>
<p>Among other things Mr. Bator who is the author of this part says in paragraph 1, notice that the line of argument made above does not in itself asserts that congress has unlimited power to assign federal judicial business to federal legislative courts.</p>
<p>It simply asserts that Article III does not rigidly preclude congress from exercising some flexibility in allocating that judicial business and that Congress may make a particular allocation to a non-article III tribunal, if functional considerations of serving a valid legislative purpose justified and if there is adequate provision for judicial review or here there is provision for judicial review in all cases to this court which is of course in Article III court and then I would like to say that nothing in our position requires the court to overrule or to disapprove anything decided in the O'Donoghue case.</p>
<p>The courts there were held to be both Article III and Article I courts but there was nothing there which held that congress could not create courts under article I to deal with local matters only.</p>
<!-- William_H_Rehnquist--><p><b>Justice William H. Rehnquist</b>: This may be rather subjective inquiry Mr. Solicitor General.</p>
<p>But do you think the majority of the O'Donoghue Court would have decided this case the way the District of Columbia Court of Appeals did?</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: Mr. Justice if I may put it this way, I think the majority of the court that decided the O'Donoghue case, if it were here in 1973 would decide this case the way that I suggest.</p>
<p>In 1933 when they were deciding it they didn't have the history that had developed.</p>
<p>The courts established the declaration of Congress that it was creating these courts under Article I.</p>
<p>If all of those provisions had been before the Court in 1933 then my answer would be yes, that they would have accepted the – let me -- I mentioned some of the practical problems before Congress and legislating here the difficulty of giving life tenure to 50-60 judges which were needed but there is also another practical problem and that is fazing in the judges under the old system into the new.</p>
<p>The judges of the Court of General Sessions have not been appointed as Article III judges and a means of making a transition was to establish Article I courts.</p>
<p>Then we do not contend that Congress could create courts generally under Article I to sit all over the country.</p>
<p>Though I would refer to the United States Tax Court which again Congress has validly created under Article I without life tenure and it does sit all over the country but it has no criminal jurisdiction.</p>
<p>Congress could not displace the Article III courts in the states by establishing Article I courts with general jurisdiction or by a series of Article I courts under the commerce power and the tax power and other powers.</p>
<p>Our position this simply that Congress has broader powers over governmental organization in the district than it has in the states.</p>
<p>Now let return to the final subject involved in the case, the question of the seizure.</p>
<p>This is one of considerable importance to the government and I hope that I have not left it buried under a mass of technicalities in presenting the other questions involved.</p>
<p>The basic question is whether a policeman may make a selective stop of a motorist for the purpose of checking his driver's license and registration certificates.</p>
<p>The District of Columbia law requires an operator to have these papers in his possession or in the automobile and that must mean something.</p>
<p>It's not just ceremony that he has to have the papers in his position there to be there so that they can be shown on proper occasion unless they can be checked by a police officer.</p>
<p>There is no way to tell whether motor vehicles which are surely dangerous instrumentalities are being validly operated.</p>
<p>Here the check was no whim.</p>
<p>The police officer could tell from the license plate that the car was a rental car.</p>
<p>He knew that many rental cars were held over time which is unlawful or re-stolen.</p>
<p>In this case the whole rental agreement did indeed indicate that the car was overdue, though this was straightened out when inquiry was made.</p>
<p>There is no allegation that the police officer acted improperly, that is in a violent or a vicious manner.</p>
<p>Rebuttal of Unk</p>
<!-- Unk--><p><b> Unk</b>: Mr. Solicitor General, Can I just go back a moment, could the judgments of the tax court be reviewed here?</p>
<p>Rebuttal of Griswold</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: Directly?</p>
<p>Rebuttal of Unk</p>
<!-- Unk--><p><b> Unk</b>: Directly.</p>
<p>Rebuttal of Griswold</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: They could be since 1970 when it was established as a court.</p>
<p>Rebuttal of Unk</p>
<!-- Unk--><p><b> Unk</b>: Well it has but before that when it was in Article I court --</p>
<p>Rebuttal of Griswold</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: Whether it's is Article I court now and they can be reviewed here.</p>
<p>Just as territorial judgments can be reviewed --</p>
<p>Rebuttal of Unk</p>
<!-- Unk--><p><b> Unk</b>: Because even though it is not an exercise of Article III judicial power they used as their exercise--</p>
<p>Rebuttal of Griswold</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: The Court has always held that it is an exercise to judicial power and there is appellate jurisdiction to review the decisions of the territorial courts established under Article I.</p>
<p>Rebuttal of Unk</p>
<!-- Unk--><p><b> Unk</b>: So we have a jurisdiction here than over District Of Columbia Court's judgment whether those courts were exercising judicial power or not?</p>
<p>Rebuttal of Griswold</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: No.</p>
<p>Only if it is exercising a judicial power but regardless of whether it's under Article III or Article I.</p>
<p>Rebuttal of Unk</p>
<!-- Unk--><p><b> Unk</b>: Alright.</p>
<p>Alright, whether or not we are exercising in Article III judicial?</p>
<p>Rebuttal of Griswold</p>
<!-- Griswold--><p><b>Mr. Griswold</b>: That is correct.</p>
<p>Prior to 1971 Mr. Justice, the Tax Court, in first place it was the Board of Tax Appeal, then it was established as the Tax court but because of a curious history, the statute expressly provided that it is an independent agency and the executive branch for the government and that lasted till 1970.</p>
<p>And during that time it was quite clear that this court could not review a decision of the Tax Court.</p>
<p>Indeed there is a case back 30 years ago involving a certificate from a Court of Appeals with respect to a question from the tax court and this is – I may say this court was always very careful.</p>
<p>Never to remand their decision to the tax court, it always remanded it to the Court of Appeals for remand to the tax court.</p>
<p>But here, there was nothing discriminatory and thus stop many citizens would welcome that has evidence that the police where doing their duty.</p>
<p>Incidentally, the statute of the District of Columbia does not say that the policeman may stop the car, but it does say expressly that any individual to whom has been issued a permit to operate a motor vehicle shall add such permit in his immediate possession at all times, when operating a motor vehicle in the District and shall exhibit such permit to any police officer when demand is made therefore.</p>
<p>This case we think is like the Biswell case, where people realizes to deal in firearms and this Court held that they were subject to inspect it, indeed said that it is to be effective in service a credible deterrent unannounced even frequent inspections are essential.</p>
<p>If a motor is chooses to drive pursuant to a license for which he has applied, he does so with a knowledge that he maybe required at any time to establish that he is doing so in unconformity with the law.</p>
<p>Under the circumstances such checks post at most only limited threats to the motorist privacy, and no threat which is not justified by his acceptance of the license and the operation under it.</p>
<p>I note that persons who wish to enter this court room they have to submit themselves to an inspection which includes the opening of parcels, and the opening of ladies handbag, I would not suppose there was any question about that and I see no basis for a question in the light of the District of Columbia statute with respect to the request for licenses in this case.</p>
<p>If the stock was proper, the protective action of Officer Morris had and looking to see if there are any weapons available was clearly proper under the general rationale of Terry against Ohio and the search should be sustained.</p>
<p>If the court reaches the merits of the case, the judgment of the District of Columbia Court of Appeals should be affirmed.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Thank you Mr. Solicitor General.</p>
<p>Mr. Flegal, we'll allow you six minutes enlarging your time a little bit.</p>
<p>Rebuttal of Frank F. Flegal</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: I appreciate that Your Honor.</p>
<p>It seems to me that the one central point that is now involved in the case is the positions of the parties have crystallized, is whether or not the citizens of the District of Columbia stand on a different footing insofar as Article 3 Safeguards and Protections are concerned from citizens in the several states.</p>
<p>We think the answer to that dis-positive question is no.</p>
<p>We rely first upon the fact that the constitution required the District of Columbia to be carved out of the several states.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: The citizens do stand on a different basis with respect to the powers of Congress?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Oh, clearly Your Honor.</p>
<p>The legislature which enacts the laws for the citizens of the District of Columbia and of course those who come into the District of Columbia is Congress or whatever local legislature it is.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: And it's a question how far that difference can stand?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: That is a legislative difference and we suggest it has no extension to Article 3 Safeguards and Protections.</p>
<p>As I was indicating the District of Columbia had to be carved out of the several states.</p>
<p>That was a factor which this Court found dis-positive in the O'Donoghue opinion upon which we place heavy reliance and I would respectfully disagree with the Solicitor General that I think if the appellant does not prevail in this case at least some of the language, some of the Article III theory of the rights and the benefits set forth in the O'Donoghue opinion would have to be rejected or retreated from.</p>
<p>Now --</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: But then as you read Seventeenth Clause of Section 8, Article I, the legislative power of Congress over the district is narrower, is less broad than the legislative power of the state in creating its own ordinance of government.</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Precisely, Your Honor.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: And why?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: And the difference is the difference between the Fourteenth Amendment which is the State's Federal Constitution restriction on a state legislature and the Bill of Rights and original constitution on Congress.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, how about the extent of it?</p>
<p>You say it's also narrower than the power over territory?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Yes indeed so sir, indeed so and I say that because this Court has so held.</p>
<p>Many rights which citizens of a state and which are not, which don't fetter a state legislature's judgment, the Seventh Amendment right to a trial by jury in a civil case, the Sixth Amendment and Article III right to a jury trial in the criminal case and the Fifth Amendment grand jury right are applicable to local offenses in the District of Columbia.</p>
<p>To that extent we submit --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: And in the territory --</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: And in the territory --</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: And in the territories, Your Honor, depending upon whether or not the territory is been incorporated or not and whether it's being fundamental or not, those are --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: But there is no in respect to territory that you need an Article III Court?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: It’s been assumed Your Honor, I know of no case in this Court which is ever squarely so held --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well, assume it had, it still wouldn't make any difference to you?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: It would make no difference to me, Your Honor.</p>
<p>We would the submit the citizens before the Federal court in the District of Columbia charged with a felony is entitled to precisely the same.</p>
<p>Constitutional rights and safeguards as a citizen charged for a federal felony before a federal tribunal in one of several states and we think the framers did accomplish something by the good behavior clause of the constitution something benefited to the litigants.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Then you are giving residents of the District of Columbia something more than residents of Maryland?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: I am giving the residents of the District of Columbia precisely the same as I would give the resident of Maryland and that is the right --</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Let me put it to you this way.</p>
<p>There are felonies in the state of Maryland, they are in the State of Virginia, as to which the residents of those states or any person apprehended there, and charged would not give an Articles III Court isn't that true?</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Correct.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: So that in that sense, you are suggesting that the residents of District of Columbia get something that residents of no other state had except --</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Weren't tried before the state tribunals, and they get a precisely the same --</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: [Voice Overlap] before the state tribunals, except to the extent that is comparable 10 year in Massachusetts, and several other states.</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: Several other states, but that is a question on which we -- a fact on which we place no reliance for our proposition.</p>
<p>What we are saying is the citizen in the District of Columbia gets rights which the State of Court would not have to afford him sitting in Maryland, the grand jury indictment the jury and we submit the good behavior judge.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Or even if the State of Court was trying for a federal --</p>
<!-- Frank_F_Flegal--><p><b>Mr. Frank F. Flegal</b>: That's the arguendo assumption Your Honor, if the governments we think that goes too far and if there are serious problems if Congress ever passed the hypothetical legislation that the government state Court argument rest upon, this Court is confronted some of those problems in the Seventh Amendment context, with the State Courts trying Federal Civil Actions and in some cases the Federal Employer liability acts in so forth, implied as part of the remedy.</p>
<p>Some part of the Seventh Amendment Jury Protection, but that's not our argument.</p>
<p>We assume arguendo with the government that if State Courts could constitutionally try federal clients Fourteenth Amendment Protections would apply.</p>
<p>Our preposition is purely a limitation on exercise of the Federal Judicial power.</p>
<p>If Court has no further questions, we submit that the judgment of the District of Columbia Court of Appeal should be reversed either with directions to remand this case for a new trial before a constitutional Court, or in the alternative to reverse and remand for either a new trial or a judgment of acquittal, excluding the evidence which we challenge.</p>
<p>Thank Your Honor.</p>
<!-- Warren_E_Burger--><p><b>Chief Justice Warren E. Burger</b>: Thank Mr. Flegal.</p>
<p>Thank you Mr. Solicitor General.</p>
<p>The case is submitted.</p>
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Thu, 23 Aug 2012 18:23:43 +000063037 at http://www.oyez.orgSteelworkers v. Bouligny, Inc. - Oral Argumenthttp://www.oyez.org/cases/1960-1969/1965/1965_19/argument
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Case:&nbsp;</div>
<a href="/cases/1960-1969/1965/1965_19">Steelworkers v. Bouligny, Inc.</a> </div>
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Transcript:&nbsp;</div>
<p>Argument of Michael H. Gottesman</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: No 19. United Steelworkers of America AFLCIO, petitioner versus R. H. Bouligny, Incorporated.</p>
<p>Mr. Gottesman?</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: Mr. Chief Justice, may it please the Court.</p>
<p>This case which is here on writ of certiorari to the Fourth Circuit, raises an unsettled question of federal jurisdiction.</p>
<p>How are the district courts to determine, whether diversity of citizenship exists, when one of the parties to the case is a labor union.</p>
<p>Now this case was instituted in the State Courts of North Carolina, the County Court of Mecklenburg County.</p>
<p>The respondent here, the company filed a complaint against the union, alleging that it had been libel by a pamphlet distributed by the union.</p>
<p>It sought as damages $100,000 actual damages and $100,000 punitive damages.</p>
<p>The only parties to the action were the company which was the plaintiff and the union which was the defendant.</p>
<p>The union removed the case to the Federal District Court, alleging the diversity of citizenship existed.</p>
<p>It asserted in its removal papers that the plaintiff company was a citizen of North Carolina, because incorporated there and having its principal place of business there, and that the defendant union was a citizen of Pennsylvania, because they were not incorporated that was the state of its principal place of business.</p>
<p>The company moved that the case be remanded to the state court.</p>
<p>It acknowledged that it was a citizen of North Carolina.</p>
<p>It did not dispute the union's contention that Pennsylvania was its principal place of business.</p>
<p>But it asserted that notwithstanding those facts diversity of citizenship did not exist because it said a union has no citizenship for diversity purposes, and that the courts must treat it when it's a party, as though it were a citizen of every state in which it has a member.</p>
<p>Since this union, the United Steelworkers has a member in each of the 50 states, including of course North Carolina, this meant on the company's theory that no diversity of citizenship existed.</p>
<p>The district judge refused to remand the case.</p>
<p>He held as the union had urged that it was a citizen of its principal place of business, Pennsylvania and that this was therefore a suit between a North Carolina plaintiff and a Pennsylvania defendant.</p>
<p>The company sought and obtained interlocutory review and the Court of Appeals reversed.</p>
<p>It held as the company urged, that a union has no citizenship of its own and that the district court must look to the citizenship of each of its members and that therefore a union such as this one with members in each of the 50 states, is to be treated as though it were a citizen of each of the 50 states and therefore incapable of removing cases to the federal courts on the ground of diversity of citizenship.</p>
<p>The question before this Court therefore, is whether labor union shall be treated as corporations have since 1844, as having a citizenship distinct from that of their members or in the corporate case their shareholders, or whether they are to have as the Court below held no citizenship and therefore be deemed citizens of every state in which they have a member.</p>
<p>Now of course the governing standard is Article III, Section 2, of the Constitution which creates the diversity ground and 28 U.S.C., Section 1332 (a), which confers that grant upon the lower District Courts and both speak in identical words.</p>
<p>The Constitution provides that the judicial power, the federal judicial power, shall extend to controversies between citizens of different states and the statute provides that the District Courts shall have original jurisdiction.</p>
<p>Of all civil actions where the matter in controversy exceeds the sum value of $10,000 as it does here, and is between, in the words of the Constitution, citizens of different states.</p>
<p>The question therefore is whether under these provisions the union like the corporation is a citizen, and in our view the beginning of that inquiry is to look to the purpose of the diversity jurisdiction, and to see whether it applies to unions as to corporations, so as to warrant their being treated as a single entity.</p>
<p>Now there have been historically great debates about what the purpose of the diversity jurisdiction is, and what it was when it was originally conferred.</p>
<p>But from the time of Alexander Hamilton's statements in Federalist Number 80, down through the legislative history of the Congressional amendments in 1958, one overriding purpose has been consistently expressed and we think must be accepted as the governing justification for the diversity jurisdiction.</p>
<p>And that purpose is that a neutral forum, a federal forum be provided, when an outsider is forced to litigate in the courts of its adversary or in the geographic region of his adversary.</p>
<p>The theory was as Alexander Hamilton put it in the Federalist, that in such cases the state tribunals cannot be supposed to be impartial.</p>
<p>And as concluded by the Judicial Conference in the 1950's and adopted in the Congressional reports in 1958, there is a great bulk of expert opinion from those who litigate in the courts, that local prejudice continues to exist and that the federal courts are in truth a strong protection against it.</p>
<p>Now, we submit that the labor union today going into those states where it is not principally found, is subjected to and receives as much local prejudice as does a corporation, which though present in that state is not principally found there.</p>
<p>And that the purpose of the diversity grant under the statutory conferral of that grant is equally applicable to the union, as to the corporation.</p>
<p>To demonstrate that indeed we do encounter local prejudice we have appended to our brief just a few leaflets which were introduced at one Congressional hearing, to show the kinds of local appeals which are made to persuade people to reject unions, when they are running labor board elections.</p>
<p>Now, these were submitted by one union and they refer to one area of the country.</p>
<p>That these leaflets are encountered by unions and these appeals to local prejudice are encountered by unions, all unions not just this one, in many sections of the country, indeed in all of those where they are not -- what might be described as the non-industrial states, those where the unions are not commonly found and principally found and very much at home.</p>
<p>And the common theme of all of these leaflets is that the union is the outsider, don't let this outsider into our community, let's not bring this outsider into our community and they reflect what really is today an economic conflict between the states.</p>
<p>We have today a great battle to attract industry between the states.</p>
<p>We have some states trying to keep it and others trying to attract it and all of them very busily engaged in what is this form of economic competition.</p>
<p>And some of those states have sought industry and advertised for it, on the ground that labor standards are a less expensive here and that this is an attraction, which you should look at when deciding to come here.</p>
<p>As a result of this conflict people in those states which are seeking business on this basis are constantly urged, as they are in some of these leaflets and editorial, constantly urged to reject the unions, let's not let them in here, because once they come in this great argument that we have to attract business to this region will disappear.</p>
<p>So that when a union is sued in the State Courts of such a state, where such appeals have been made, and where such local prejudice against them does indeed exist, it faces a mighty burden and a mighty danger.</p>
<p>In this case for example, a prominent local corporation is seeking damages to the tune of $200,000 against a union which has come to that state and sought to organize its employees.</p>
<p>Now, to be sure this union does have a few more members in that state, they constitute less, considerably less than one-tenth of 1% of its membership, but there --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: [Inaudible]</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: It has -- , well this union, the Steelworkers sets up a local whenever it organizes a plant.</p>
<p>It has, I understand a couple of plants in North Carolina and therefore couple of locals.</p>
<p>It had no local at the situs of this plant, because it doesn't create one until after it's organized the employees and they've elected it and of course in this case as it happened, the union was not elected, so no local was ever created.</p>
<p>But it does have a couple of locals in the state of North Carolina and it may be that even on their theory those locals which are independent entities, independent legal entities, might be citizens of North Carolina.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: [Inaudible]</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: Pardon me.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: [Inaudible]</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: Yes, they may well be on our theory, but of course they are not sued here.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: No one is sued?</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: No one is seeking that they pay the liability which might be awarded in this case, the international is sued here.</p>
<p>And the jury will well know that if it awards a verdict of $200,000 it is not going to be paid by our few members there nor by these locals who are not parties, but it's going to be paid from the treasury of this union, which is in a bank in Pittsburgh, Pennsylvania.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: [Inaudible] holding in your favor, do you realize that is not ordinary business partnership [Inaudible]</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: Well we think and I hope that will develop in my argument, that the standard which ought to be used in determining, whether an unincorporated association is a citizen, is not a broad one which says that every unincorporated association is a citizen, but one which looks to the legal characteristics of the association to determine whether in fact it is so viewed as an entity distinct from it's members, that it is likely to be subjected to the prejudice of an entity or whether in fact it is primarily a loose group of people associated together which perhaps has a few characteristics of a legal entity, but not very many.</p>
<p>We think indeed that this Court has already said that in Puerto Rico versus Russell which I'll come to.</p>
<p>Now it may well be that in the common partnership the two men who bound together, the characteristics of legal entity, which have been assigned to that partnership, are considerably less, indeed I am sure they are, then that which is assigned to the labor union today.</p>
<p>For many more purposes the partnership is not an entity but two men joined together, who are treated as two individuals for numerous purposes in the law.</p>
<p>For many less purposes as I'll show is a labor union so treated as a group of members.</p>
<p>Indeed it is now I think safely to be said treated as much an entity as is a corporation and we will show this I hope in the course of the argument.</p>
<p>Now to be sure we have spelled out the prejudice which we, the labor union fear, the local prejudice which we fear in certain states, but this is not a one sided matter.</p>
<p>There are those who must sue the union where it can be found in its states, who feel that in such states they are the outsider and it's they who want the protection of the diversity jurisdiction.</p>
<p>Indeed this is I think the first case ever to reach an appellate court in which it's been the labor union asserting that diversity exists.</p>
<p>There have been only a few cases in the appellate court that those that have gotten there with the exception of this one, have been cases when the labor union is adversary in the proceeding, usually an individuals, sometimes a corporation, is alleging and asserting that diversity exists and that therefore they are entitled to the protections of the federal courts.</p>
<p>This is very much as is I suppose every diversity consideration a two-way street.</p>
<p>You are an outsider somewhere and you are insider somewhere and whichever side you are on, someone would like to be in federal courts for its protections, where indeed you have citizens of different states.</p>
<p>Now the plaintiff, the person who wishes to sue the union has gotten rather sympathetic treatment from some of the Courts of Appeals including the Court below.</p>
<p>They recognize, indeed they say it would be a failure of justice if one could not bring the labor union into the federal courts on diversity grounds and they have therefore approved the procedure of suing union in a class action, not naming the union, but naming certain representatives of the union as the defendants, being careful to select only representatives who's citizenship is distinct from the plaintiffs.</p>
<p>And then under the prevailing doctrines of this Court, since you look only to the representatives of the class to determine diversity, then finding that there is here diversity of jurisdiction because the plaintiff is a citizen of state A and the particular of representatives of the labor union named are not citizens of state A.</p>
<p>And they have said that this procedure allowing this class action was essential to bring the labor unions into the federal courts on diversity grounds and essential to prevent the failure of justice.</p>
<p>We submit however that while that decision and the desire to bring the federal court -- the labor unions into the federal courts as defendants is entire sound.</p>
<p>That it's grossly unfair to say that the labor union likewise doesn't have the opportunity to remove it's case to the federal courts on diversity grounds, because the consequence is that the plaintiff is given the absolute option.</p>
<p>This North Carolina citizen who wants to sue what really is a Pennsylvania corporation can choose which court we will be in, if it wants to sue us in federal court it sue as a class and it will have diversity under the decisions of the court below.</p>
<p>But if it wants to prevent us access to the federal courts, it may only sue us in our common name as an entity and under the decision of the court below we are forbidden to remove this case to the federal court.</p>
<p>This we think a far greater of failure of justice than one which would keep both parties out of the federal court.</p>
<p>And so we submit that if this question were one of first impression and for reasons which I'll get into, we don't think it is, that looking to the purpose of the diversity jurisdiction, looking to the fact that this Court has since 1844 concluded that, that purpose warrants treating a corporation as a citizen, that likewise a labor union should be treated as a citizen for diversity purposes.</p>
<p>But we think it's not a case of first impression.</p>
<p>Indeed, we think this case is governed by this Court's decision in 1933, in Puerto Rico versus Russell.</p>
<p>We've said --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: In what case did you say?</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: Puerto Rico versus Russell.</p>
<p>It appears at pages 22 through 25 of our brief, which is the light gray brief and in that case the Court had before it an unincorporated association entitled “Sociedad en comandita,” a Puerto Rican unincorporated association and the question was, was it a citizen of Puerto Rico, which is where it was chartered and setup or was it as the sociedad contended not a citizen of Puerto Rico because all of its members were citizens of another state.</p>
<p>And the Supreme Court first took a broad look at its decisions dealing with corporations and it said, we have said that a corporation is a citizen or treated as a citizen, not because of any magic surrounding the act of incorporation, but because the corporation is a complete legal personality, is endowed with a complete legal personality and therefore it is convenient to treat it so as a legal personality for purposes of diversity jurisdiction as well.</p>
<p>And it said the question we must decide with respect to this unincorporated association is whether it too has been endowed with a complete legal personality for other purposes.</p>
<p>Such that it can be conveniently treated as such a legal personality for diversity -- for citizenship purposes as well.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: [Inaudible] if the union – you know if a plaintiff picks out a couple of union members and sues them a as -- in a class action in the federal court as you suggested could be done and judgment is obtained against the -- to -- from whom can you collect the judgment?</p>
<p>Let's not say whether the union would paid it or not, but who could you force to pay it?</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: The prevailing rule, as I understand it and there is First Circuit decision which had some trouble with this, but the prevailing rule is that if you sue these representatives in their capacity as representatives of the class, normally some sort of officer or and it's not just any member, you've got to find someone who has some sort of representative.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well what kind of class -- you mean as representative -- you are suing him as representing the union?</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: That's right as representing --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: As representing class of individuals?</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: As representing the class which consists of all the members of the union.</p>
<p>The prevailing rule and it's not the exclusive rule, is that you can collect your judgment out of the union's treasury.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Out of the union treasury?</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: Yes.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: What does that rule obtain?</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: It obtains in those decisions which have held, that they are cited in our case that --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Is there some citations to the contrary?</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: There is a First Circuit case which has held expressly to contrary, and said that if you sue the representatives as representatives of the class, you can only collect from each of the members of the union individually, but not from the treasury of the union which in our judgment would be far worse result.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well how about converse?</p>
<p>Can -- do you of any cases in which individual union members have sued as -- brought a class action against somebody in the federal court?</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: On behalf of the union as an entity?</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well on behalf of the class?</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: I am not aware of any of the purpose in which --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: I don't know why it wouldn't be as permissible as being sued that way?</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: Well it would.</p>
<p>As a practical matter it never arises though, because it's just -- a peculiarity since federal law governs so much of the conduct of a labor union, virtually any suit which a labor union would want to bring is one which is not --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: But what if you wanted to bring the libel action?</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: Well assuming that the states are now holding that a labor union can be libel as an entity.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Yes.</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: Yes I suppose that under these decisions the representatives of the union could bring such a class action.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: In a federal court?</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: Pardon me?</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: In a federal court?</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: In a federal court alleging diversity and if the decision of the court below on that question, the representative question is correct, then they could create diversity jurisdiction in that manner.</p>
<p>The much more common case however is when the union is the defendant, in that very narrow area of cases which are not governed by federal law, because of course to the extent that unions activities are governed by federal law, the removal of law on federal question ground and --</p>
<!-- Tom_C_Clark--><p><b>Justice Tom C. Clark</b>: What is [Inaudible]</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: I'm sorry?</p>
<!-- Tom_C_Clark--><p><b>Justice Tom C. Clark</b>: [Inaudible]</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: Held that he could not collect from the entity's class.</p>
<p>It's a First Circuit case and it's not cited in our brief, I don't recall whether it's cited in the respondent's brief or not.</p>
<p>But it is -- and I'm afraid it's not and I don't recall the name of hand, but we would if the Court desires.</p>
<p>It's I believe Oscuel versus someone and we would if the Court desires submit the name of the case after the argument.</p>
<p>Predominantly however the Labor Union's activities are governed by Federal Law and are removable on Federal question grounds.</p>
<p>We are dealing with a very narrow area.</p>
<p>We are dealing with the area which is neither contract actions, they are covered by 301 or internal matters, which are governed by Landrum-Griffin, nor preempted matters.</p>
<p>We are dealing in other words with violent torts and possibly with libel actions because this Court is to sit this term to decide whether or not they are preempted and in this narrow area the union is rarely the plaintiff, you can't be -- a union can hardly be injured by a violent tort as an entity.</p>
<p>It's almost always the defendant.</p>
<p>This is the area where the removal question is going to be raised.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: [Inaudible]</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: The language of the statute is 28 U.S.C. Section 1332(a).</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: [Inaudible]</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: Subsection (1) which says that there is jurisdiction when the controversy is between one, citizens of different states.</p>
<p>This is at page two of our brief.</p>
<p>Those are of course the same words which appear in the Constitution.</p>
<p>Now we believe that what the Supreme Court said in 1933 in Russell is that when an entity has acquired all of the characteristics of legal personality as a corporation has, it is entitled like a corporation to be treated as a citizen for the purposes of Federal Jurisdiction and that we think is the governing case here because as we've set out in our brief, pages 32 through 35, the Labor Union today is for all virtually all purposes the same legal entity that a corporation is, it's far more a legal entity than the sociedad involved in the Puerto Rico versus Russell case.</p>
<!-- Abe_Fortas--><p><b>Justice Abe Fortas</b>: Mr. Gottesman what do you have say about the point made in your opponent's brief that Puerto Rico against Russell really turned on the question of domicile not citizenship and that, that is an important difference for the purposes of your case?</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: Well Puerto Rico versus Russell arose under the Organic Act as we say in our brief, not under the diversity statute as such, but the Organic Act provides that there will be jurisdiction in the Federal District Court if either of the parties to the action is not a citizen of Puerto Rico.</p>
<p>And there was the other -- pardon?</p>
<!-- unk--><p><b> Unknown Speaker</b>: [Inaudible]</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: I believe it says not a citizen of Puerto Rico domiciled in that state are the exact words.</p>
<!-- unk--><p><b> Unknown Speaker</b>: [Inaudible]</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: It says when --</p>
<!-- unk--><p><b> Unknown Speaker</b>: [Inaudible]</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: Where all of the parties on either side of the controversy are citizens of a foreign state or states, or citizens of a state territory, District of the United States and not domiciled in Puerto Rico.</p>
<!-- unk--><p><b> Unknown Speaker</b>: [Inaudible]</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: That's right, but I don't think you can read the decision to say that.</p>
<p>If you read the Puerto Rico versus Russell decision, the Court from the beginning to end says the question we have before us is whether for the purposes of Federal Jurisdiction this sociedad shall be treated like a corporation as a citizen for purposes of Federal Jurisdiction.</p>
<p>And what the Court does is to analyze and exclusively those cases in which it has dealt with the question of diversity of citizenship and it's entire analysis and it's entire rationale is structured on a comparison of the sociedad to a corporation in light of its decisions according citizenship to a corporation for diversity purposes.</p>
<p>Now we don't deny that this was not a diversity case, but the decision of the Court reflects the Court's judgment.</p>
<p>You cannot read it I think and come to another conclusion, that if an unincorporated association has the same legal characteristics as a corporation, it should be treated the same for the purpose of diversity jurisdiction, of all kinds of Federal Jurisdiction, including diversity jurisdiction.</p>
<p>Now one more thing I'd like to point to, corporation is not a citizen for all purposes under the Constitution.</p>
<p>That word appears in a number of places.</p>
<p>Corporation is not a citizen for the purpose of privileges and immunities, it has been held such.</p>
<p>It is a citizen for the purposes of diversity jurisdiction.</p>
<p>Likewise it is not a person for some purposes, but it is for others and the case we would like to call to Your Honor's attention which appears at pages 34 and 35 of our brief, is United States versus White.</p>
<p>That involved the question is a Labor Union entitled to treatment as a person with the privilege against self incrimination and the Court had already found that a corporation is not and the question was is the decision with respect to corporations equally applicable to Labor Unions and what the Supreme Court said was we've looked to the purpose of this Constitutional Clause, we've already said that it is not applicable to corporations and we find that Labor Unions are so much like corporations today that the same purpose and the same justifications require that they be treated the same way.</p>
<p>Since a corporation does not have the privilege neither does a Labor Union.</p>
<p>We submit that here in Russell the reverse is true, since the Court -- Russell in this case, since the corporation is a citizen for a diversity purposes, so should be the Labor Union, which is precisely like it in all legal respects and I should like to reserve the remainder of my time if I may.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Mr. Grier.</p>
<p>Argument of Joseph W. Grier, Jr</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: Mr. Chief Justice may it please the Court.</p>
<p>On this appeal the union is faced is with an adverse opinion on the law, an experienced Circuit Court composed of Chief Justice Sobeloff and Circuit Judges Bowman and Bail.</p>
<p>A record which does not contain the proof that would be required for the union's standard and by actual facts which would show that the union has a greater political strength in the area, does then does -- then does respondent Bouligny.</p>
<p>In the oral argument if I may, I would like to try to make these five points.</p>
<p>One, the record does not establish the facts required for diversity jurisdiction, applying the test suggested by the union.</p>
<p>Second when the action was filed, the law was clear that the union had no right to remove from the state to the Federal Court on the grounds of diversity.</p>
<p>Third the existing law as established by this Court, has the advantages of simplicity and of certainty, important on jurisdictional questions and the rule suggested by the union is difficult to apply and uncertain.</p>
<p>Four the classic reasons for diversity that is prejudice against litigants from outside the state is unlikely as against a union with a local establishment.</p>
<p>We finally fear if the long settled law is to be changed, the change should be accomplished by legislation after completion of a careful study now being made by the American Law Institute at the request of the Chief Justice of this Court.</p>
<p>Now on the first point the record consists only of the complaint, the summons, the notice, the motion to remove, the fallable bond, the motion to remand, an affidavit which we filed by a plaintiff in a companion suit Mr. N.F. White as the union's local membership.</p>
<p>The District Court's memorandum opinion was rendered after an informal hearing in chambers at which no evidence was taken.</p>
<p>There are no findings of fact apart from the memorandum opinion.</p>
<p>The record as such contains no evidence as to how the union in fact is organized, how the union in fact operates, that in fact its principal place of businesses is in Pennsylvania or is the union as thrown in its brief that Bouligny is a prominent local corporation.</p>
<p>Now the point is that when the jurisdiction on diversity grounds is put in issue, the burden of supporting its jurisdiction allegations falls to the union by competent proof.</p>
<p>There is a case which we cite of Thompson against Gaskill decided by this Court in 1942 in which Mr. Justice Frankfurter for the Court said the policy of the statute conferring jurisdiction upon the district courts calls for strict construction.</p>
<p>Accordingly if a plaintiff's allegation of jurisdictional facts are challenged by the defendant, the plaintiff bears the burden of supporting the allegations of complaint by -- allegations by competent proof, the bill must be dismissed, if the evidence in the record does not support the allegations.</p>
<p>Now broadly the union contends in this case that you should adopt the rule that because they say and because the district judge said and because certain court actually assumed that a modern labor union has these corporate characteristics, that the same rule should be applied to it as has been applied first by the Court and now by Congressional legislation in 1958 to corporations.</p>
<p>And we suggest to you that there is nothing in the record about this particular corporation, about this particular defendant that would enable a court to find any facts and that under the law, it was up to the union to put into the record those facts.</p>
<p>Second point, when the action was filed in May of 1963, the law was perfectly clear that the union had no right to remove from the state to federal court on grounds of diversity jurisdiction.</p>
<p>This Court had so held in Chapman against Barney, cited in our brief, in Great Southern Hotel Corporation against Jones.</p>
<p>Seven of the ten circuit Courts of Appeals had so held.</p>
<p>In three of those cases this Court had denied certiorari.</p>
<p>Those cases are cited on page 19 of our brief.</p>
<p>The study being made currently by the American Law Institute states under existing law the actual citizenship of each member apparently has to be taken into account in determining whether diversity exists, I'm quoting the American Law Institute study.</p>
<p>About five years ago, Chief Justice of this Court requested the American Law Institute to make the study.</p>
<p>I'm quoting from the 1965 proposed final draft on page 61.</p>
<p>I will read the language again. “Under existing law the actual citizenship of each member apparently has to be taken into account in determining whether diversity exists.”</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: [Inaudible]</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: Yes, sir and I would like under my fifth point to come to that if I may.</p>
<p>In this case, removal on the grounds of diversity jurisdiction could haven been prevented by the class action by naming defendant union members as defendants to residents in North Carolina.</p>
<p>Now again if I might make reference to the American Law Institute report, on page 61 of that report, the law on that point is thus summarized.</p>
<p>“Under present law it is possible to create or avoid federal jurisdiction by bringing suit on behalf of or against some or all members of the association with an eye to their citizenship and without regard to the principal place of business of the association itself.”</p>
<p>See discussion in International Allied Printing Trades Association versus Master Printers, 34 Federal Supplement, 178 a district court in New Jersey in 1940.</p>
<p>There also on the same point is a Fourth Circuit opinion, the Judge Parker I think name of the case is Thompson but I do not have the citation to the particular case.</p>
<p>I emphasize this point for this reason.</p>
<p>When we brought the suit in the state court, the law was clear that the union had no right to remove on diversity grounds.</p>
<p>It may have had a right to remove on federal question grounds but not on diversity grounds.</p>
<p>If we thought that was any doubt about the law, we could have brought a class suit and foreclosed the thing once and for all and I suggest that in this particular suit as a matter equity as between the parties, the law --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: [Inaudible]</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: Sir?</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: [Inaudible]</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: As I understand the rule Your Honor, Bouligny being a North Carolina corporation could have named the local agent and some other local members.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: [Inaudible]</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: No, we wish to stay in state court.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: [Inaudible]</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: Yes we brought the suit in the state court, it was the union that wished to go to the federal court.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Naming the defendant as a union, is it?</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: Yes, sir.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: As you may under North Carolina practice I gather?</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: Under North Carolina practice there are two sections of our law.</p>
<p>One is GS1-97, passed about 1939, which first provided for serving an unincorporated association with summons.</p>
<p>And there was some question as to whether that accomplished the whole of making the union suiable, so that in 1955, there was an additional provision added that's GS1-69, which specifically says, that a suit may be brought.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: We just may -- we might have trouble questioning your judgment?</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: Yes.</p>
<p>Point three, the existing law has the advantage of simplicity and of certainty.</p>
<p>The important considerations on jurisdictional questions and the rule that has been suggested by the union, would be difficult to apply and would be uncertain.</p>
<p>It has been two-and-a-half years since this action was filed and as yet the union has not filed an answer to the complaint.</p>
<p>Indeed the union says to us in its brief that it's not exhausted its motions on the question of jurisdiction.</p>
<p>If the established rule had been applied by the district judge, his memorandum opinion said that he didn't, he was not satisfied about the law and he would like to know what the law was and therefore on his motion certified to the circuit court, it was case the circuit ought to take.</p>
<p>If he had sent the case back to the trial court in Mecklenburg County for trial it would have been long ago disposed of.</p>
<p>The courts in that county and indeed in most of North Carolina current.</p>
<p>They are trying cases there, on the facts that arouse within this year, some within six months.</p>
<p>And the case could have been long ago disposed of and I think of course equity be disposed of had not this point been raised.</p>
<p>If the rule were to be followed which has been suggested by the union and that is the rule that the union says was announced by this Court in Russell, it would require an inquiry by the district court in each particular case, in order to verify what the facts in that particular case might be.</p>
<p>In other words, it's a rule that depends on the facts of the case and not on the simple fact as in corporations of one particular thing that can usually be easily ascertained from the record.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: You mean one labor union might be different than another?</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: One labor union might be different from another.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Or even the same one, I gather, your position might be -- in different cases it might require factual inquiries in each instance, even against the Steelworkers?</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: Yes sir.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Is that it?</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: Yes sir.</p>
<p>And each such inquiry would require time and expense and delay, which would further add to one of the objections trials from the federal court and that is the time consumed and expense involved in litigating what are normally relatively simple matters.</p>
<p>If the union rule is adopted in this case, it would yet leave to plaintiffs, the device of class action that might be brought, so that it would not really catch anyone except the party is not yet aware of the opportunity of bringing the class action.</p>
<p>And it might take from the state courts determination of matters that really should belong in the state courts for determination.</p>
<p>Except to the extent that Congress by the National Labor Relations Act may have preempted the field or given some directions, if affect of the law of libel is a matter that's to be determined in accordance with North Carolina law, if the case is tried in the district court, it will of course be the duty under Erie against Tompkins for the district judge to apply the North Carolina law of libel to this case.</p>
<p>He would be in the situation of applying the law of North Carolina where there would not be a direct appeal to the highest court of the state of North Carolina, which is I understand it is not thought by authorities to be a desirable situation.</p>
<p>I suggest to you under the fourth point that the classic reason for diversity, that is prejudice against litigants from out of the state is unlikely against a union with a local establishment.</p>
<p>I might suggest to you that, that is not prejudiced in North Carolina as I suppose elsewhere, that the country clubs against labor unions.</p>
<p>As I think it would be recognized, that they are many social and economic groups in which corporations and corporate officers are not particularly popular.</p>
<p>But the point is that the Federal Courts in diversity matters do not sit for the purpose of affording jurisdiction in every matter of prejudice, but sit only for the purpose of protecting litigants against prejudice which arises against them because they happen to reside outside the state.</p>
<p>I suggest to the Court that if any prejudice would exist against the union in this case it would not be helped by the suggestion that this union happen to have its headquarters in Greensboro, North Carolina or some other place in North Carolina.</p>
<p>In other words, if there is any prejudice that would apply against this union it does not arise because it is not a North Carolina union, it arises out of economic reasons that have nothing to do with briefs.</p>
<p>Now finally, the last point that I wish to make, If the long settled law is to be changed, the change should be accomplished by a legislation, after completion of the careful study that's now being made by the American Law Institute at the request of Chief Justice of this Court.</p>
<p>About five years ago Chief Justice made that request.</p>
<p>Mr. Richard Field of the Harvard Law School was named as the reporter of that study.</p>
<p>Beginning at least in 1962, perhaps in 1961, but I believe I'm certain as to 1962 and each year since then at the annual meeting of the association, Mr. Field and the distinguished group of scholars that he has associated with him, have submitted to the annual meeting of the American Law Institute proposed recommendations in regard to the division of jurisdiction between the state and the Federal Courts.</p>
<p>At the meeting in 1965 there was submitted a proposed final draft number one, which completed the study on the general head of diversity jurisdiction.</p>
<p>Now the reports that have been submitted contains some recommendations in regard to the matter that's at issue in this case.</p>
<p>The reporters recommend some changes.</p>
<p>They do not recommend the changes that have been suggested by the union.</p>
<p>What does now 1332 having to do with diversity jurisdiction?</p>
<p>Well under the numbering section of proposed legislation be numbered as Section 133.</p>
<p>That would provide that except as provided in this section and Section 1302 of this title, that district courts shall have jurisdiction originally or on removal of any civil action between citizens of different states, citizens of a state or foreign states or citizens of the subject thereof, citizens of different states in which foreign states or citizens are subject thereof additional bodies, wherein the matter in controversy exceeds the sum or value of $10,000 exclusive of interest or cost.</p>
<p>In Section (b) for the purposes of this section and Section 1302 of this title, one a corporation shall be deemed a citizen of every state or foreign state by which it has been incorporated and of the state or foreign state where it has its principal place of business.</p>
<p>That follows Section (c) of the passed law except that it adds the language a foreign state which is thought to be in doubt under the present law but which is not material here.</p>
<p>It then adds another section that's directly in point as to this case.</p>
<p>A partnership or other unincorporated association capable of suing or being sued as an entity in the state in which an action is brought shall be deemed a citizen of the state or foreign state where it has its principal place of business.</p>
<p>Whether such action is brought by or against such partnership or other unincorporated association or by or against any person as an agent or representative thereof.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Well that means that if that had been in effect when you brought your action against the Steelworkers, it wouldn't be removable, isn't that right?</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: It would be removable if this was the end of the recommendations.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Oh I see.</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: But there is a Section 1302 that says provided however and it's that section that I would like to come to, but before I do it, I would like to make a couple of comments about this section.</p>
<p>That is that the test of looking to the characteristics of the union which is the Russel suggestion, is not here adopted, but rather the suggestion is made that the entity be recognized if under the law of the state it has the capacity to sue or be sued, which is a relatively simple test, though it would vary from place to place, it's a rule of Section 17(b) I believe --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: And under the law of North Carolina –-</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: A Union --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Steelworker could –-</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: Yes.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: [Inaudible] suit.</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: Yes, that's correct.</p>
<p>It also you will notice abolishes this device of the class suit, because it provides that the entity theory is applied even though the action is brought against representatives of the union.</p>
<p>Now in Section 3 just for sake of clarity and completeness, there is a section added that it would reenact the 1964 amendment arising out the Louisiana situation in which a direct suit against an insurance company was authorized, and that language is repeated.</p>
<p>And then Section 4 is language which would avoid the device of appointing an executor, citizen of another state of the purpose of creating jurisdiction.</p>
<p>The executor is also to be deemed a citizen of the state of the deceased.</p>
<p>Now Section 1302 says, general diversity of citizenship jurisdiction exceptions, the jurisdiction of district courts under Section 1301 of this title shall be subject to the following exceptions.</p>
<p>(A) no person can invoke that jurisdiction either originally or on removable in any district in a state of which he is a citizen, that's the most profound of the changes that's being suggested.</p>
<p>The statistics indicates that something like 45% of present original diversity jurisdiction would be eliminated and taken from the Federal Courts as result of this provision denying to the plaintiff a Federal Court in his own state.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Well what would that do to you?</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: That would have no application to this case.</p>
<p>(B) no corporation incorporated or having its principal place of business in the United States and no partnership unincorporated association or sole proprietorship having it's principal place of business in the United States, which has and for a period of more than two years maintained a local establishment in the state, can invoke that jurisdiction either originally or on removal.</p>
<p>In any district in that state in any action arising out of the activities of that establishment.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Well your thought would be that if Steelworkers has local unions in the state that takes them out of Landrum-Griffin?</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: Yes sir.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: That would depend I suppose whether a local union is a local establishment, would it?</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: Well the definition of a local establishment is defined as follows.</p>
<p>The term local establishment as used in this subdivision means a fixed place of business where or in connection with which is regular part of such business services are rendered or accommodations furnished to persons within the state, sales, delivery or distribution of goods are made to persons within the state by one regular maintaining a stock of goods or showroom for the display of samples and three; sales of insurance, certificates of other intangibles or real property or interest therein are made to persons in the state; Four, production or processing takes place.</p>
<p>Now as this section establishing the additional limitation on Federal Jurisdiction of the local establishment which in the first draft was --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: But you read that definition of local establishment, that doesn't seem to me that was federal labors --</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: Well it may not if Your Honor please.</p>
<p>As a matter of fact there is another provision that says that this would not, which is a point of controversy within ALI at this point or was at the annual meeting.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Now whether it's a matter of structuring diversity jurisdiction the union would or wouldn't be within that exception nevertheless the ALI recommendation is that the union be treated as an entity and as a citizen and it's just that some citizen may have some activities in the state which may borrow from the Federal Court, but on the issue we're talking about the ALI seems to have gone along the Russell way.</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: No sir, the Russell way is to look at particular facts of the entity, all the facts.</p>
<p>The ALI test is to look only at the question of whether under state law it's capable of suing or being sued, it adopts the simple test.</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: Now you are just saying -- all your are saying is they get at it in a different way.</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: Well, they go at it in a different way, but I am suggesting to you --</p>
<!-- Byron_R_White--><p><b>Justice Byron R. White</b>: They arrive at the result of the union being as a -- qualified to be in court as an entity.</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: I suggest to you though it's vastly superior way to that of having to make an inquiry into each particular case.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: And I suppose it's true is it, still that in many, many states, perhaps in most unions are not suiable?</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: One of the things we say about this particular unit – union that claims to have all the authority is in its own state of Pennsylvania, it may sue only in the name of trustees.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Yeah.</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: Which we say is a fairly serious limitation.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Well it's a long time since I've to think about this, but it used to be I know that you couldn't sue in most states.</p>
<!-- Joseph_W_Grier_Jr--><p><b>Mr. Joseph W. Grier, Jr</b>: I going to make this point about the local statute rule, it applies to corporations as well as to unincorporated association and represents an effort on the part of ALI people to contract Federal Jurisdiction and perhaps the basic issue here is the question of how far should Federal Jurisdiction go that may cut across what the union regards as the trend to treat any of these in a different way from what they were formally treated.</p>
<p>In any event when first draft of this came in, the local establishment rule had no application to unincorporated associations.</p>
<p>The floor of ALI insisted that it ought to, so in 1964 they voted to include it.</p>
<p>In the 1965 draft it was so included as I have read it to you except that a provision then appeared to this effect, the provisions of this subsection shall apply only to entities organized or operated primarily for the purpose of conducting a trade investment or other business enterprises, thought by the reporters to exclude religious, charitable, paternal organizations and labor unions and the suggestion was made that it seems to me to be entirely erroneous that the reason for excluding such organizations was that they could not acquire a local personality as could a business organization.</p>
<p>I would think that if any group could acquire a local personality it would be a local church for instance or some other eleemosynary institution.</p>
<p>Well, to summarize then let me say that we think that the law is well settled in our favor.</p>
<p>We think that the law as it exists is simple.</p>
<p>We think if the law is to be changed it ought not be changed along the lines of Russell, which would be complex, but that it would be better as a matter of working all of these things out if the report of the American Law Institute could be completed and if the Congress could then have appropriate hearings about it and if these things that affect venue, affects labor relations and a great many other things could all be considered at one time and the thing brought about in an orderly fashion.</p>
<p>Thank you very much.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Mr. Gottesman.</p>
<p>Rebuttal of Michael H. Gottesman</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: May it please the Court.</p>
<p>I should like to devote the reminder of my time to two points raised by counsel for respondent.</p>
<p>The first is as to the entity status of a union vis-a-via a corporation and specifically in response to Mr. Justice Brennan's question.</p>
<p>A labor union now to our knowledge is suiable as an entity virtually in every state of the union.</p>
<p>In the last ten years the state courts by statute and by modification of their common law have made a union an entity not only in that respect, but they have made a union such an entity that it may sue for libel of the entity as such, something which was not --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: [Inaudible]</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: And it marches on because the union has become an entity and recognized as such.</p>
<p>And the clearest indication of this is the Landrum-Griffin Act in 1959, which really is a corporate charter for labor unions.</p>
<p>You've got to have a Constitution and bylaws, you must file in as public records.</p>
<p>You must have elections at periodic times.</p>
<p>You must not have certain kinds of trusteeship and so on.</p>
<p>The entire structure of a union is regulated precisely as is a corporation and Congress said that the reason for that was, it said in the legislative report, that unions have now become like corporations to be entities distinct from their members and must be regulated as such.</p>
<p>So we think insofar as the entity question is concerned, the union is like the corporation an entity.</p>
<p>More on that Mr. Grier said that the problem will be in every case you'll have to try the facts of the labor union's entity.</p>
<p>But these are not questions of fact, but of law.</p>
<p>The law makes the labor union an entity.</p>
<p>Federal law primarily Landrum- Griffin and so on and virtually unanimous state law as a result to these amendments over the last ten years.</p>
<p>The second point I'd like to reach is the suggestion let's leave it to Congress.</p>
<p>A very appealing suggestion I suppose, although the Court has to decide the case one way or another, in whichever way it decides it of course it will ultimately do what the Congress which has the right to amend this Court's decisions on the question of jurisdiction.</p>
<p>But we suggest that Congress has already exercised the full scope of it's constitutional jurisdiction, for it has written a diversity section of the statute in precisely the words of the Constitution.</p>
<p>If, and this has been true in 1875 Congress almost wrote the Constitution into the statute, not only for diversity grounds, but for all jurisdictional ground.</p>
<p>It has then over the years written exceptions in to be sure there is a $10,000 jurisdictional amount, there are a number of exceptions.</p>
<p>There is non saying labor unions are not to be treated as citizens, and so we have a statute in the words of the Constitution saying there is jurisdiction between citizens of different states.</p>
<p>If Congress has the constitutional power to allow a labor union to remove the case on diversity grounds, then presumably it has done so by writing the statute in the words of the Constitution.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Why is that followed?</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: It doesn't necessarily follow.</p>
<p>Congress could use the constitutional words and intend to mean something less, but the history of 1875 Act is that Congress intended to adopt the constitution.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: It doesn't define the word suit?</p>
<!-- Michael_H_Gottesman--><p><b>Mr. Michael H. Gottesman</b>: Well, that's right it may not be constitutional to make a labor union a citizen, but if it is constitutional we say Congress has already done it.</p>
<p>So it maybe unconstitutional, but if it's constitutional, it cannot be left to Congress because Congress has done it already, that is our point.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Thank you.</p>
<p>Very well.</p>
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Wed, 22 Aug 2012 16:56:30 +000080265 at http://www.oyez.orgU.S. v. American-Foreign Ss. Corp. - Oral Argument, Part 2http://www.oyez.org/cases/1950-1959/1959/1959_138/argument-2
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Case:&nbsp;</div>
<a href="/cases/1950-1959/1959/1959_138">U.S. v. American-Foreign Ss. Corp.</a> </div>
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Transcript:&nbsp;</div>
<p>Argument of Arthur M. Becker</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: (Inaudible)</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Your Honor.</p>
<p>I mentioned the case of Bishop against Fisher in which Judge Maris participated as being in the First Circuit, I'm told -- I meant the Third Circuit which Judge Magruder --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: -- has been assigned from the First to the Third Circuit and then participated in the en banc -- in the en banc decision to deny a petition for rehearing in the Third Circuit, not in the Fifth.</p>
<p>Now, I believe that the --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Is that the only instance you've ever -- you've been able to find that it was ever done?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, then sir, of a judge assigned from another circuit.</p>
<p>Yes, but we have found several cases precisely like this one in three circuits -- three other circuits where a judge who an active judge who was assigned to a Court of Appeals en banc and thereafter retired after the case was submitted, participated in the decision of the court.</p>
<p>Now, we found that that practice to be followed in the Third Circuit and we have two cases in our briefs on that in addition to the two cases we have, are (Inaudible) and (Inaudible) against the Auto Racing Association.</p>
<p>Now, they referred to in the Government's reply brief on page 4 and in our supplemental brief on page 2.</p>
<p>In both of those cases, Judge Maris, the situation is exactly the same.</p>
<p>They were heard exactly the same time by a court en banc of which Judge Maris is an active Judge of the Third Circuit participated.</p>
<p>Thereafter, Judge Maris retired.</p>
<p>Thereafter, he participated in the decision of both of those cases on the same day.</p>
<p>It's precisely the same as the case now before the Court.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Did they grant the rehearing on those cases or denied them.</p>
<p>Do you know?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: They -- no -- no, this was not a grant of rehearing.</p>
<p>Judge Maris --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: When they acted en banc did they have --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Yes, sir.</p>
<p>There had been a grant of a rehearing.</p>
<p>It's like this case.</p>
<p>It's not like this supposititious case.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: I see.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: And he was on the court en banc on the rehearing or on the hearing or rehearing.</p>
<p>He was a member of the court en banc just like Judge Medina was.</p>
<p>Thereafter, he retired.</p>
<p>Thereafter, the case was decided and he participated in the court's decision.</p>
<p>We have also found in addition to that, two -- three cases in the Ninth Circuit which we have called to the Court's attention.</p>
<p>Those three cases are Herzog against the United States.</p>
<p>In those cases, Judges Bauman and Orr heard the case en banc, thereafter, retired and thereafter, participated in the court's opinion.</p>
<p>The other case was United States against Price.</p>
<p>In that case, Judge Healey who was a member of the court en banc that heard the case thereafter retired and thereafter, participated in the court's decision.</p>
<p>Now, there is another case, In re Sawyer, in which Judge Denman had participated in the case but withdrew, he did withdraw.</p>
<p>Judge Hamlin who had been appointed between the time it was submitted and the time it was heard, did not participate.</p>
<p>And I think a fair reading of that case is that this was an individual determination of Judge Denman.</p>
<p>Now, the court pointedly said, the only reason he didn't -- didn't participate was that he didn't want to in every implication particularly since it's bracketed between the two other cases where they did permit the retired judges to participate.</p>
<p>Every implication is, the court said, “Well, if you don't want to, you don't have to.”</p>
<p>But the court did not deny him that right.</p>
<p>And in addition to that, there are two cases in the Fifth Circuit where the court sat on a rehearing, sat to determine whether a rehearing en banc should be granted.</p>
<p>Now, in those cases the point was specifically raised by dissenting judges like it was here as to whether Judge Sibley, who had sat with the court en bank could participate in the decision en bank denying a petition for rehearing.</p>
<p>He did vote, it was denied 3-to-2 with his vote and the other two judges dissented and said, “He had no right to participate and thereto, there were two other judges who had been appointed in the meantime, one to take Judge Sibley's place and one to take Judge Lee's place who had died but had not participated in the original decision because he was ill in the original case.</p>
<p>And the court did not permit these two new judges to participate in the question of whether a rehearing en banc should be granted but did permit Judge Sibley to participate and it was denied 3-to-2 with his vote being decided.</p>
<p>So we have three other circuits.</p>
<p>I think that case is the same in principle as this case.</p>
<p>We have two circuits in which the same question has arisen and be decide this way, a Third Circuit in which a question identical in principle has arisen and to decide it this way.</p>
<p>And then also in the Third Circuit, you have the case of the judges -- of the active judge from one circuit sitting by assignment and that leads to the same result.</p>
<p>So, every case, now, it's very difficult to say we have every case Your Honor because they're not -- they're not normally classified.</p>
<p>We found them by leafing through the books but I had two people doing that for six months and done it myself.</p>
<p>My colleagues had done the same thing and the Government has with every case any of us have found all went that way in every single circuit.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: However, they didn't sit.</p>
<p>You -- you couldn't find them in their seats.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, no sir but -- but we did look -- we did -- we did try to.</p>
<p>We -- we took the list of the retired judges and --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: I see.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: -- and we went through it as well as we could.</p>
<p>We may have missed it because --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: --as you see if --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: -- it's not classified it's a rather difficult --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: -- situation.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Would you mind giving me the names of those three cases.</p>
<p>I just want to check them off in the --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: They're -- they're in the --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Those three cases you were referring to.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, there -- there nine.</p>
<p>And you mean in the Ninth Circuit?</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Yes.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: The Ninth Circuit the three cases are, Herzog against the United States, In re Sawyer --</p>
<!-- Charles_E_Whittaker--><p><b>Justice Charles E. Whittaker</b>: In re what?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: In re Sawyer, S-A-W-Y-E-R, In re Sawyer and they are referred to on pages 21 and 22 of my main brief.</p>
<p>And the Third case with the Ninth circuit is United States against Price and that is referred to on page 4 of the Government's reply brief and on page 2 of my supplemental brief.</p>
<p>Those are the three Ninth Circuit cases.</p>
<p>The Third Circuit cases and I want to emphasize this because I have always disagreed with -- with the Government's interpretation of Judge Maris' views.</p>
<p>They say Judge Maris would have denied that, he never said that.</p>
<p>He spoke of active judges participating generally but he never -- he never spoke of this situation where the judge was designated and assigned to the court before he retired.</p>
<p>Now, therefore I want to particularly stress the two cases that arose in the Third Circuit because there, (Inaudible), appear on page 4 of the Government's reply brief and C-O-R-E-B-I, Corebi against the Auto Racing Company which is also on page 4 the Government's reply brief.</p>
<p>And they are on page 2 of my supplemental brief.</p>
<p>Now, and though both of those cases the judge retired after participating in the -- after hearing the case en banc was Judge Maris.</p>
<p>And he himself thereafter, voted with the court and participated in its decision just like Judge Medina did in this case.</p>
<p>So I do think that our interpretation of his views is correct rather than the Government's interpretation of his use of some general statements he made.</p>
<!-- Charles_E_Whittaker--><p><b>Justice Charles E. Whittaker</b>: Was there any attack upon that action?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: No, sir, there was not.</p>
<p>The question -- the -- the only case in which I know of in which the action of the judge was ever attacked in participating was in this case and also in the two Fifth Circuit cases where Judge Sibley participated in denying where his vote was decisive, after he retired in denying a petition for rehearing en banc.</p>
<p>And that was the case where the court sat en banc to deny the petition for a rehearing en banc.</p>
<p>And in that case the dissenting judges in both of those cases attacked his right to sit on the court.</p>
<p>Those are the only cases that I know of or I think the Government has made a similar statement in its brief that they know of in which the -- in which the question was actually discussed.</p>
<p>Now I'd also like to make one other point.</p>
<p>I think it is very clear that the Western Pacific Railroad Case, that in Western Pacific Railroad case, this Court held that the majority of the active judges of the circuit could delegate authority to a panel either to deny or to grant a petition for rehearing en banc and that was specifically before them that the panel in that case consisted of two district judges and one circuit judge.</p>
<p>As a matter of fact, the majority of the opinion noted that fact and said that's why this -- now, if I might go into the Western Pacific Railroad case a little more because I think it's terribly important to this problem.</p>
<p>What happened there was, the majority of the courts -- the Court Of Appeals said, “We will not pass on a petition for -- for a rehearing en banc.”</p>
<p>This is a question for the panel.</p>
<p>The panel said or -- or this Court interpreted the panel as saying, “We think we're without authority in law to determine whether a petition for rehearing en banc should be granted.”</p>
<p>Judge Vinson who wrote the majority opinion said, “This panel consisted of one circuit court judge and two district judges.”</p>
<p>He said that specifically but it was the Court of Appeals, nevertheless.</p>
<p>And we -- we hold that the -- that the majority of the active judges could determine to abide by the decision of this panel by entrusting the question of whether a rehearing en banc should be granted to them.</p>
<p>And we know that two of the judges are in this panel were district judges and perhaps that's why they thought they had no authority to act so we're sending the case back because we think they could have acted or they said, “The court if it liked, the active judges could themselves have decided the petition.”</p>
<p>But in any procedure, the majority of the active judges decide this perfectly call of right.</p>
<p>They can either delegate their whole authority to this panel with two -- two district judges and one circuit judge or they themselves can adopt the procedure whereby they will decide whether a rehearing en banc should be granted.</p>
<p>And I --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: But does it follow that -- that they can have -- sit with them en banc anyone they want?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well.</p>
<p>I don't know, Your Honor but I'm -- I'm rather inclined to think it does because the broad rationale of the -- of the Western Pacific Railroad Case was, that it's a grant of power to the Court of Appeals to decide -- devise any acceptable procedure.</p>
<p>Now, I don't think there's any difference between the active judges who the statute says can determine whether a petition for rehearing en banc should be granted and the active judges who may sit with the court.</p>
<p>And I think the one follows with the other and it's a logical -- there's also many other reasons why I believe that's true but there's a logical compactness with it.</p>
<p>Certainly, the judges who can vote, grant a rehearing or designate as judges in active service are precisely the same category of judges who can preside on it.</p>
<p>Now, I think the Western Pacific Railroad case said, as I interpret it, “The active judges of a circuit are primarily members of the Court of Appeals.</p>
<p>They must be consulted.</p>
<p>They must be members of a court en banc and the legislative history shows us.</p>
<p>That's why it said all active judges of the circuit shall constitute or a court en banc shall consist of all active judges of the circuit.</p>
<p>If they wish to call someone else in or they wish to delegate part of their authority, they can do so and I think that avoids the reductio ad absurdum that Mr. Elman spoke up.</p>
<p>In other words --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Or if they're going -- excuse me.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: No, no.</p>
<p>Go right ahead please.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Sir.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Calling somebody else in to sit.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's right.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: And allowing somebody who is not an active judge of the circuit to sit on the petition, are two different things.</p>
<p>In order to support your broader proposition, you have to read the last sentence saying that a court en banc shall include all active --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's right.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: -- circuit judges instead consist of.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's right.</p>
<p>Well --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: That's your proposition.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: -- well that's what I -- that's what I do think.</p>
<p>Now, Your Honor --(Voice Overlap)</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: You don't have to go far that --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: -- I would like to point out that I don't -- I don't think that this precise problem because there's no -- in this case, there's no disagreement as to a judge who has been assigned.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: I don't see why you'd take on more baggage enough to --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well I -- I don't wish to accept.</p>
<p>I was trying to answer some of the questions but that I -- I don't think we have to go that far that's quite correct and I don't --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: But if you're going -- if you're not going to go that far, how -- what language do you -- do you rely on in 46 (c)?</p>
<p>What -- what permits you to differentiate between the judge and judgement on his position and -- and one who is assigned from --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, simply this Your Honor.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- not only to this circuit or --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, I think --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- or for the District Court to --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: I think section 46 (c) refers to the times the court is constituted.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: The what?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: The time that the court en banc is constituted not to a subsequent time.</p>
<p>This is a section -- the entire Section 46 refers to the -- gives authority to the Court of Appeals to assign its work and distributed among its member and to constitute itself into divisions or into a court en banc.</p>
<p>Now, if the court is lawfully constituted at that time, a subsequent change in status of one of its members does not render him incompetent to sit.</p>
<p>Now, Your Honor this is not a new question.</p>
<p>This has come up in literally dozens of cases where a jurisdictional statute in addition to those I've cited, the precise cases, en banc cases I've cited.</p>
<p>There were literally dozens of cases where a jurisdictional statute says, “A judge may sit with the court while a vacancy exists.”</p>
<p>The vacancy is filled and under the literal language of the statute, he has no authority.</p>
<p>In every single one of those cases and there I do believe, we've read every single one of them.</p>
<p>The courts have held that the statute should be interpreted to refer to the constitution of a court at the time it's convened.</p>
<p>And they said if a judge no longer has authority that refers to new cases, not to cases which have been committed to the consideration of a court while he was a member of a court.</p>
<p>That rule of statutory construction, the cases were collected in -- the cases were collected in District of Columbia case of all these various jurisdictional statutes (Inaudible) which we've cited here.</p>
<p>They quote the language of the statute.</p>
<p>It's always peremptory in form that says he has authority up to this point and in every case state and federal, the courts have said, “This does not stop a judge who is lawfully a member of a court for completing a case which he heard as a member of the court."</p>
<p>I'd like to point (Voice Overlap).</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: And would you say that applied to this Court?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Yes, sir.</p>
<p>Yes, sir.</p>
<p>There's no --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Have you found --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: -- are found --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- found any instances where it has been for --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, we --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- for you?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, Your Honor, we found or -- or you mean this -- I'm sorry, you mean the Supreme Court?</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Oh -- no, Your Honor.</p>
<p>I -- I would not say it applied to this Court because I --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: What do you think --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: -- I think there is --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- the distinction from the point (Voice Overlap) --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well as a matter of --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: (Voice Overlap) that you attest that --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: I think -- I think --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- that instrument.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: -- that in the retired judges, it says --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Beg your pardon?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: I think with respect to retired justices in this Court if my memory serves me right, the statute says they shall not participate thereafter, in -- in any decisions of the Supreme Court after they retire.</p>
<p>I think there is a special --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Where -- where is that?</p>
<p>I -- I'm not quite familiar.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, I -- I haven't got of the statute before me --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: I beg your pardon?</p>
<p>Is there -- would you -- would you send that to us?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Yes, I will.</p>
<p>I think there is a -- I think there is a specific well -- more than the assignment statute.</p>
<p>It says they can never thereafter be assigned to the Supreme--</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Oh, I know, but you say the assignment has already taken place that they -- that they --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- sat and it was assigned to them --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Yes.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- and they worked on it and so forth but didn't do it -- it didn't -- the judgement didn't come down by the time they retired.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well.</p>
<p>There maybe another policy but I don't know -- I do -- my offhand reaction was that there -- there is probably a policy for justices not to participate after they retired from the Supreme Court.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: You think it's only a matter of policy?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, I think there's a policy by recollection as indicated in the -- in these sections of the statute.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Well, now let's see if I understand --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: But I -- I don't know.</p>
<p>I haven't examined that question.</p>
<p>I have --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: The Chief Justice's questions was whether the principle that -- what you said was the prevailing body of judicial authority that when a man is a new member of -- has jurisdiction to sit in a case which is terminable on some condition to be fulfilling a vacancy and so on.</p>
<p>He may continue to sit after the condition of his temporary appointment has come to an end, is that right?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's, right.</p>
<p>That's right.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: The Chief Justice, as I understood him, then asked, does that apply to the -- this Court, the Supreme Court of the United States so that a member of this Court having heard the argument, participated at conference and as has been the case even drafted an opinion in which the court joined.</p>
<p>If thereafter, if he retires before there's an actual announcement of the decision of a Monday, he can no longer participate in it.</p>
<p>I think there is certainly one or two cases in which this Court has said this is substantially the opinion which was written by Brother Jones and the Court now adopts it.</p>
<p>But he himself ceases to be -- he is faultless if he's not actually physically in service as a member of the Court on the given Monday when the case is ever done.</p>
<p>I thought you said you thought there was a specific result.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well I did but I --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: -- from the statute.</p>
<p>I should be greatly surprised of that result.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, I -- I think Your Honor, I was referring to the statute with respect to the subsequent assignment for designation of -- of a justice of this Court.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: You mean as a circuit justice, isn't it?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Yes, that -- that the statute says it even designated the courts other than the Supreme Court as I believe assigned to them.</p>
<!-- Tom_C_Clark--><p><b>Justice Tom C. Clark</b>: Because I asked for this, I thought it's just affirmatively --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's right.</p>
<!-- Tom_C_Clark--><p><b>Justice Tom C. Clark</b>: I think that's the closest field down their (Inaudible) --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: I think so.</p>
<p>Yes -- yes I think that's quite right but -- but it seems to imply that he can only get the designated or assigned to those courts and not to the Supreme Court at (Voice Overlap) --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: All you can say is that so far as this Court is concerned, once a judge resigns or retires -- that he retires, he can no -- he is no longer an active -- I'm not questioning -- he's no longer potentially capable of functioning on this Court.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: I think that's correct.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: But in the case of retiring -- retiring or retired circuit judges, putting this thing aside, they do continue to exercise -- they may exercise all the functions they did regarding this problem here, the day before they retire.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's right.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: But he's still a member of the collegium or collectivity that constitutes --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's right.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: -- the court whereas that is not the one we tried.</p>
<p>Well, just --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's right.</p>
<p>I think in a sense, a retired justice of the Supreme Court is no longer really a -- a member of the Supreme Court.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: That wouldn't really -- he isn't one.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, then that's -- that -- that I think is the distinction whether a retired judge of a Court of Appeals is a member of a court.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well is he?</p>
<p>Is he?</p>
<p>Now, what -- what does 43 (b) say?</p>
<p>It says, “Each Court of Appeals shall -- shall consist of the circuit judges of the circuit --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's right, sir.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- in active service.</p>
<p>The circuit justice and justices or judges designated or assigned shall also be competent to sit as judges of the Court.”</p>
<p>But it does not say that they are still members of the Court.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, Your Honor the reason I said they were is this -- that is precisely what this Court said in the Textile Mills case.</p>
<p>In that case, the same statute said, the circuit justice is competent to sit as a member of this Court and this Court held that he was therefore a component part of the Court although the circuit judges were primarily members of the Court and I was adopting the language this Court said.</p>
<p>This Court said that because the circuit justice was qualified -- was competent -- precisely the same language was --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: By assignment.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: -- was competent to sit as a member of the Court.</p>
<p>He was therefore, was competent to sit as a judge of the Court.</p>
<p>He was therefore, a component part of the Court.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: That's for the -- for the purpose and which assigned.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, it used the word component part.</p>
<p>I was using the same language.</p>
<p>I didn't -- did want to make --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: -- any distinction.</p>
<p>I was using the same language this Court had used.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: But in the Textile Mills case, this Court did say that.</p>
<p>I believe I have it -- I have it in my -- well, yes, here it is.</p>
<p>It was in a footnote.</p>
<p>It says, “In this connection, it should be noted that Section 120 of the Judicial Code makes the Chief Justice and associate justices of a Supreme Court assigned to each Circuit competent to sit as judges of the Circuit Court of Appeals within their respective circuits.”</p>
<p>That's why the Circuit Court of Appeals is composed primarily of circuit judges, the circuit justice is made a “component part” of that Court.</p>
<p>And I -- I --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: That -- would that lead to you to believe that the circuit justice is -- is an active judge of the --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: No sir.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- of the Court?</p>
<p>Would he -- could he sit as a --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Yes sir.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- en banc?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: I think he could, sir.</p>
<p>I think that's what Textile Mills held.</p>
<p>Now, I'd like to go into the legislative history of this a little bit.</p>
<p>And I think that's precisely --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: -- what they tried to enact.</p>
<p>In the Textile Mills case, you utterly recall, the question was of course whether the Court could sit en banc.</p>
<p>And in reaching the conclusion that it could sit en banc, this Court said it's obvious that the three-judge limitation cannot be applied liter -- applied literally because some circuits have more than three judges.</p>
<p>It also said and that's a remark I was just reading from.</p>
<p>In this connection, it should be noted that the Chief Justice and associate justices are also competent to sit as members of the Court.</p>
<p>They're component parts of the Court and in its decision, it equated competency to sit on the Court with competency to perform its most important function, to decide cases and therefore said, all judges competent to sit on the Court are competent to sit en banc and decide a case.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: And do you believe that there are -- are three or four retired members of the Court of Appeals in a large circuit and the chief judge also brings in -- in two or three outsiders to sit in certain litigation that all of them can sit with the active members of the court en banc?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: If the active members of the Court decide that they want him to because the authority to assign judges to the Court in its divisions resides in the active judges of a court under Section 46.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: In other words, it's -- is it your opinion that -- that whenever a judge is assigned to -- to perform duties in the Court, that for all purposes, he becomes an active member of the Court?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: No sir.</p>
<p>He becomes competent to sit as a judge of the Court not an active member of it and I say -- what I'm saying is --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Then how do you read out the active members?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well -- well, I'm not quoting it out.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: (Voice Overlap)</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: The active members of the Court of -- on -- I'm adopting the same view this Court did in the Textile Mills case.</p>
<p>The active members of the Court are primarily the Court.</p>
<p>They're defined as such.</p>
<p>They have the authority of assigning to the Court and its divisions any judge or justice who is competent to sit as a member of the Court.</p>
<p>And I say that the active judges of the Court have the power if they desire to call in -- to take any judge who's competent under Section 43 (b) and permit him to sit on a court or its divisions or with the -- with the active judges en banc.</p>
<p>I think that's the plain meaning of the statute.</p>
<p>And I think also, it's what -- it's what was intended.</p>
<p>I'd like to point this out, Your Honor that there is -- there is considerable legislative history on this which indicates that was intended.</p>
<p>Now, as I pointed out before in answer to Mr. Justice Frankfurter's question, Section 120 made only the chief justice and the associate justice -- justices of the Supreme Court assigned to each circuit competent to sit as judges of the Circuit Court of Appeals.</p>
<p>Then the district judges could sit to fill out a three-judge court.</p>
<p>That -- that obviously was not involved here.</p>
<p>Now, when 43 (b) was revised, the revisers in their notes -- the revisers in their note provided that the provision of Section 212 of Title 28 U.S.C. for a three-judge Court of Appeals was permissive and did not limit the power of the Court to sit en banc.</p>
<p>Thus, Subsection (b), and that's the section I'm talking about.</p>
<p>Thus, Subsection (b) reflects the present status of the law, namely that the Court is composed of not only circuit judges of the circuit in active service or whom there more -- be more than three.</p>
<p>But the circuit justice or justices and judges who maybe assigned or designated to the Court, see Textile Mills Security Corporation v. Commissioner of Internal Revenue.</p>
<p>And all the revisers did when they revised 43 (b) was include the new class of judges who could be designated and assigned to the Court and gave them the same competency, and intended to give them the same competency to sit with the Court en bank that this Court held the circuit justice had under the former Section 120.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: What page is that quoted on your brief, Mr. Becker.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Yes sir.</p>
<p>It's quoted on Section 35 and 36.</p>
<p>Now, the Reviser's Note is at the bottom of 35 of my main brief.</p>
<p>And now -- now, Your Honor, I would like to call your attention to this case of (Inaudible).</p>
<p>I think it's very important because it correlates all the cases in which there were mandatory jurisdictional statutes.</p>
<p>And in that case, the Court pointed out and that's on page 27 of my brief.</p>
<p>I have that.</p>
<p>The Court pointed out, this was the Court of Appeals in the District of Columbia.</p>
<p>“That it was authorized to call in a justice of the Supreme Court of the District of Columbia to sit with the Court while a vacancy exists.”</p>
<p>Then it says, that's on page 27, “Between the submission of a case and its final disposition, weeks may intervene.”</p>
<p>And it goes on and says --all right, yes.</p>
<p>“And if during that period, the justice whose place the additional justice had taken must remain -- remain away from the Court although ready to act, it would greatly impede, the dispatch of the public business here.”</p>
<p>Ever since the organization of the Court, it has been the practice for the additional justice to participate in the opinions and judgments in cases argued before the Court while he was on the bench although the regular justice whose place he had been appointed to fill had returned to his duties before the judgments ran out.</p>
<p>The right of the additional justice to do so has never been questioned by anyone so far as we know.</p>
<p>Now, they point out --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well that's provided by statute, isn't it?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: No, sir.</p>
<p>The statute says he can sit while the vacancy exists and this is the case where he no longer can sit because the judge whose place he was filling has returned and the Court says, nevertheless, he can't sit.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well, wouldn't -- wouldn't the Section 296 --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, the -- these are --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- apply to it?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Sir, these are -- these are cases under other -- these are cases under other jurisdictional statutes.</p>
<p>No, this was before 296.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Before 296.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Yes, sir.</p>
<p>And the --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: But there are some -- some special statutes about who can sit and how they can act in the District of Columbia, are there not?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, there were then.</p>
<p>Now, the district -- the Court of Appeals for the District of Columbia is a Circuit Court of Appeals just like the other circuits.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well, I know but there are certain --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Yes, sir.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- judges that can --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's right.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- who -- who are here, who can sit in the --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That -- that's quite correct, Your Honor.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- in the District of Columbia who cannot sit in -- in other parts of the country.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's quite correct.</p>
<p>But -- but Your Honor, -- that -- that was not the point before the case here.</p>
<p>The point here was, they were discussing actually the general effect of jurisdictional statutes under which an authority of a judge has ended.</p>
<p>They said --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: They said the authority has ended and they went through all the state statutes and said it doesn't matter.</p>
<p>Every court, they pointed out there are courts always interpret such statutes as permitting a judge to finish a case he heard as a member of the court en bank or as a member of the court.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Member of the Court, yes.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: A member of the Court even though his authority ended.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: I know Section 296 says that specifically.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Yes it does.</p>
<p>That's right.</p>
<p>And I think that supports the position of the Court below.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: But I -- I still don't see how you equate that to making him a member of a -- an active member of a court which is defined by the statute as being those -- those judges who are active judges of the circuit.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, that -- that's quite right.</p>
<p>What I -- what I'm saying is, I adopted the language of this Court.</p>
<p>And I think more properly speaking, I'd say that Section 43 (b) makes him competent without qualification to sit as a member of the Court and that's what -- that's really what I meant.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: And I was using this Court's language because they said it's a component -- you say it's a component part of the Court.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Your -- your chief argument is really on the Textile Mills statement, isn't it?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: No, sir.</p>
<p>Our chief argument is -- that's one of our arguments.</p>
<p>The chief argument is on the point that a judge's -- that a judge's authority does not end as a member of the Court that a -- when his general authority ends, he is always permitted to decide cases that he heard as a member of the Court.</p>
<p>That's our chief point and we found that every case in every state has decided that way.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: But of course that wouldn't be true if the statute said otherwise.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, if (Voice Overlap) the statute isn't clear and unambiguous terms said or otherwise, I assume it would not be true but the Courts have been always refused to interpret a statute that way unless it was very clear that the legislature had so intended.</p>
<p>As a matter of fact, I only -- though I've said that I know of no case in which they actually have so held and I think I've read all.</p>
<p>They've always said the language is not clear enough so as to lead us to believe that the legislature intended so capricious a result, a result which would so -- as to badly interfere with the administration of justice as to take a judge who heard a case off the court.</p>
<p>Now, they -- they have said that the legislature's intention was unmistakable.</p>
<p>We hold the other way.</p>
<p>But in the most mandatory statute, they said, “We don't believe it.”</p>
<p>And they've even said, “We don't believe it even when the language literally says that.</p>
<p>We don't believe that's what Congress intended.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Your argument is that this -- that Judge Medina was a member of a court en bank which consisted of all active circuit judges of the circuit.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's right.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: And that that is not cut down by the first sentence, shall be heard and determined who are in active service.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's right.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: That's the short of the argument.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's right.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: If you don't read -- you don't qualify the last sentence by the fact that the purpose of the -- the function of court is to determine, you read quite -- quite -- you read literally but for the court en bank should consist of all active circuit judges in the circuit that it so consist -- your reading.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, oh yes.</p>
<p>Also Your Honor, we think that the judges who were assigned must determine it.</p>
<p>But we don't think that the status of the judges may -- must be the same.But of course the function of a court is to determine cases but we say the justice in the other jurisdictional statutes are the change in status of the judge, did not disqualify him.</p>
<p>We say that change in the status of Judge Medina did not disqualify him.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Well he wasn't an active --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's right.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: -- in the technical sense, he was not an active judge.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's quite right.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: And he participated in the decisions.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's right.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: He was an active judge when the Court was constituted and you rest on that, on the literal translation of that last -- meaning of the last sentence.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's right.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well, I wonder how you -- how you justify the case that you mentioned a little while ago where you say two -- two judges sat on the -- on the case and then retired later and their positions were filled before the decision was rendered.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's right.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: And the two who were -- who filled the positions were barred from service --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's Right.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- on the court.</p>
<p>And the old -- old ones were permitted to act.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, but say --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Now, how -- how can -- how could you read those two new --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, because -- because, Your Honor --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: (Voice Overlap) on that of statute if the statute says all active members of the court.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Your Honor, that's precisely -- that was precisely the point of Judge Hincks' opinion and I agree with it thoroughly.</p>
<p>For almost a hundred years, this Court starting with the case in the United States against Kirby which I've cited has said that statutes which lead to an absurd and unreasonable result should not be literally read so as to read to that -- lead to that result.</p>
<p>They said, “We are not to interpret such statutes.</p>
<p>We want to make exceptions.</p>
<p>We need exceptions into them.”</p>
<p>Now, even the dissenting judges in this case who felt that they were compelled by a -- what I consider a pseudo literal reading of Section 46 (c) to object that Judge Medina is sitting on a court said, “They regarded judges in his position, their --their participation in such cases as desirable and beneficial but they doubted the wisdom of excluding a judge who had sat on the court from -- from participating in its decision.”</p>
<p>And I think under those circumstances, following the traditional way in which this Court has interpreted the legislation, this sort of an exception or this sort of a policy should be read into it.</p>
<p>We ought not to say that if in other cases, it would lead to a bad result, we can cross those bridges when we come to it but we are not to say now that where it would lead to an obviously good result, we should bar the judge from sitting.</p>
<p>And I think that's what every court has done in four circuits.</p>
<p>They've always done that.</p>
<p>They have never let the new judge come in because that would obviously require a rehearing.</p>
<p>How can he come in as a sort of second class member of a court?</p>
<p>He has to know what went on to intelligently decide the case and they won't bar the old judge from participating in the case.</p>
<p>Every single case has said that.</p>
<p>Now, I -- I don't want to take all the time because --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: On the first sentence of 46 (c), supposing that and read the toward a division of not more than three active judges.</p>
<p>Would your position be any different with respect to the competency of a retired judge to participate in this?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: No, sir, I think it's exactly the same because I want to point out and I want to point out that in this connection, there's another statute which says that no retired judge shall perform any judicial duties without being designated or stand assigned.</p>
<p>And we pointed out that Judge Median decided 36 cases, three-judge cases without a designation of assignment.</p>
<p>Judge Magruder decided 25.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Well, the Government makes no point about that.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, yes but I think it's a relevant point because it seems to me it's the same principle.</p>
<p>There, a statute in mandatory terms as the -- a judge shall perform no judicial duties and yet -- yet he's been permitted to because it was a sensible and wise thing to do if he heard the case in every one of the circuits.</p>
<p>This has arisen in 10 of the 11 circuits.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: (Voice Overlap) --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Have that been considered -- had that been considered by the courts?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, I don't --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: And argued as to whether -- whether any judge can sit on --on any federal court without assignment unless he is the judge of that Court?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, Your Honor please, I -- I don't think it's ever been discussed.</p>
<p>It is -- it's not before this Court now in the Goldfine case in a petition for certiorari.</p>
<p>Well, I have -- I have cited in there cases in 10 of the 11 circuits in which -- in which the practice has been followed.</p>
<p>And those are the only cases --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well -- well, then this language in 43 (b) is -- is -- supporting to you and might just as well -- just as well write it out (Inaudible).</p>
<p>Thus, in the -- each Court of Appeals shall consist of the circuit judges of the circuit in active serve -- service.</p>
<p>The circuit justice and justices or judges designated or assigned shall also be competent to sit as judges of the court.</p>
<p>Now, if they -- if they don't have to be designated or assigned, what is that language for?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well -- well, the Government explained this to the court below saying that designation and assignment was a designation and assignment that took place before they retired, their assignment to the case.</p>
<p>That's what the Government said to the court below.We have that quoted in -- that statement quoted in our brief.</p>
<p>And that apparently is the theory.</p>
<p>That's how they explained the theory that if the judge has been designated and assigned to a case before he retired, his designation and assignment (Voice Overlap) --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes, I know but you're talking about doing it in 30 cases, and part of one judge and 25 (Voice Overlap) --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, that's exactly what happened.</p>
<p>We have the cases.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well, I know it happened but I'm -- does that make it right?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, Your Honor, yes because they were assigned -- they were assigned to all these cases before they retired.</p>
<p>These are all cases in which they -- they were assigned.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well, but they didn't -- but they didn't complete?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: But they didn't complete.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Oh, I didn't -- I didn't' (Voice Overlap).</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: I'm sorry.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: These were all cases in the same position as --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Oh, yes, yes.</p>
<p>And I thought you --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: No, no.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- were talking about new cases --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Oh no, no.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- after they retired.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: No, no, Your Honor.</p>
<p>These are cases in which they were assigned.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's why I think the parallel exist (Voice Overlap) between.</p>
<p>Now, the only other point I want to make --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: But Mr. before you leave that, how can -- how can a litigant ever know or how can a reader of the Court's opinion ever know whether or not the retired judge was designated and assigned.</p>
<p>There's nothing in the statute when this is all within the circuit when it's -- when it's a matter of the chief circuit judge designating a retired circuit judge of that circuit to sit that there's nothing in the statute requiring that that be in writing, isn't it?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, I think there is Your Honor.</p>
<p>I think that there --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: I'd like to -- I have the --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Yes, I'll give that to you.</p>
<p>Well, the second paragraph of 2 -- of 295 says all designations and assignments of justices and judges shall be filed with the clerk and entered on the minutes of the courts from and to which it's made.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Well that -- that involves inter-circuit designation, doesn't it?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, I think it involves both I would assume.</p>
<p>There's nothing that indicates --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: But Judge Magruder sat in other circuits, didn't he?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: In --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Judge Magruder sat outside of the First Circuit.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Yes, but in the First Circuit, he sat in 25 cases in those --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: That I know, but my point is, did Judge Magruder sit in other circuits beginning the case when he was still in active service and concluding when he had retired.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: No, sir.</p>
<p>Not --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: On First Circuit and he sat in cases in which he sat as a -- unquestionably an active judge.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's right.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: But the decision wasn't determined until after he had retired.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's right.</p>
<p>And there are 25 of those.</p>
<p>Now --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Do you say that's the second paragraph of -- of 295?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Yes, sir.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: And where does that appear, it's not the appendix in (Voice Overlap) --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: No, no it is not because if -- it's in the --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Well, it's in the Code.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: It's in the Code.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Right.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: And -- that's the only point my opponent -- my colleague will discuss the thing.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Mr. Fort.</p>
<p>Argument of J. Franklin Fort</p>
<!-- J_Franklin_Fort--><p><b>Mr. J. Franklin Fort</b>: Your Honors please.</p>
<p>My argument will have to be cut down some but what I would like to deal with primarily is the question of what is the practical solution to this problem.</p>
<p>In both the Textile Mills case and the Western Pacific case, this Court has held that there is considerable liberality in the constitution of en -- en banc courts and that -- that any interpretation of the statute which will aid in the smoother administration of justice should be adopted.</p>
<p>Now, we think that taking the date of the --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: That's a rather broad statement, Mr. Fort.</p>
<p>That means that whatever we think is desirable to the new administration of justice, allows us to determine the scope and authority of judges.</p>
<!-- J_Franklin_Fort--><p><b>Mr. J. Franklin Fort</b>: Well, Your Honor, it --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: It might be highly desirable for that to -- it will --</p>
<!-- J_Franklin_Fort--><p><b>Mr. J. Franklin Fort</b>: It was a broad statement but -- but in -- in Textile Mills, it was stated that if there is any ambiguity or doubt about the statute that the interpretation which reaches a practical result is the interpretation.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Or you could create an ambiguity that reaches a very undesirable result.</p>
<!-- J_Franklin_Fort--><p><b>Mr. J. Franklin Fort</b>: Your Honor, in picking the date on which the en banc court is constituted, we think that there will result certainty insofar as the judges themselves are concerned and as well as the litigants in the course of the completion of the case.</p>
<p>Any judge who becomes a member of the en banc court will know that the work that he does on the case and will be accepted or considered that whatever -- whatever his views are, they will be considered by the other judges and that his -- his views will be considered in the final decision whether it be as a part of the dissent or a part of the majority.</p>
<p>The rule in respect to district judges and in respect to panel judges clearly is that they shall be permitted to continue with the consideration of any case which is given to them to decide irrespective of whether they retire or not and that they can finish the judicial business and we feel that this rule which seems to be of universal acceptance should be accepted from the point of view of the en banc courts.</p>
<p>Again, from the point of view of the litigants, as the court below pointed out, if the Court must be reconstituted every time there is a change in the constitution of the group of judges in the circuit, then questions will arise concerning re-argument, resubmission of briefs and it will no doubt delay the completion of the en banc consideration of the case.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: This is not a very powerful argument really because if the rule went as the Government would have it, it's not a very serious matter to a judge sitting on a case to accommodate his retirement to the finishing of the (Voice Overlap).</p>
<!-- J_Franklin_Fort--><p><b>Mr. J. Franklin Fort</b>: Well, Your Honor, I don't accept that argument.</p>
<p>I -- I don't think that a judge can feasibly accommodate his retirement to the completion of a case which is uncertain and I think this case is an excellent example of that because the en banc consideration began in December 1957 and wasn't completed until February 1959.</p>
<p>And there was a 15-month lag there during which -- presumably on the Government's theory, Judge Medina should have postponed his retirement.</p>
<p>In addition to which if he remains an active judge as I read the statutes, he would have to take a full case load until the en banc case was -- was decided and it would clearly interfere and impede retirements by the circuit judges which are encouraged.</p>
<p>Now, the retirements on our theory would permit the judge to retire, to participate in the decision, a new judge to be appointed who in turn could take on new duties in the Court.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: What do you understand is the main reason for having en banc theory?</p>
<!-- J_Franklin_Fort--><p><b>Mr. J. Franklin Fort</b>: Well, that there are two main reasons, Your Honor that this Court has mentioned.</p>
<p>One is to decide the important issues and the other is to resolve inter-circuit conflicts.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Inside the Circuit?</p>
<!-- J_Franklin_Fort--><p><b>Mr. J. Franklin Fort</b>: Intra-circuit conflicts.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Well, if that is one of the reasons, does that cut against your argument in there?</p>
<!-- J_Franklin_Fort--><p><b>Mr. J. Franklin Fort</b>: You Honor, no, I don't -- well, it will depend upon what the constitution of the en banc court was but on the Government's rule, a judge can be dropped only but cannot be added.</p>
<p>Whereas in the rule that we have vacating, we taking the date on which the Court has convened, you will have a -- a court which presumably can take the case to a final decision with a recourse only to this Court after the decision is rendered.</p>
<p>Now, we have -- in the Second Circuit, we have had three changes.During the course of these en banc proceedings, Judge Medina retired, Judge Hincks has retired and Judge Friendly has been appointed.</p>
<p>There is a vacancy, there has not been a substitute appointed for Judge Hincks.</p>
<p>There is legislation pending which might result in two new justices being -- judges being appointed to that circuit and if the case is remanded, the -- the status of all of those judges perhaps will come into question.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: But what I'm asking for was, if that's one of the reasons that I should think probably or I'm not sure that we have the points decided by the judges who are to remain there after that time would come nearer, stabilizing the law so far as the intra-circuit situation is concerned.</p>
<!-- J_Franklin_Fort--><p><b>Mr. J. Franklin Fort</b>: Well, that -- I think that it is -- is questionably, Your Honor, although it -- as I say, it depends upon the way the votes of the judges are cast.</p>
<p>Now, here we had a five-judge court below which was properly convened under the en banc statute and they were able to resolve the intra-circuit conflict.</p>
<p>On the Government's rule, Judge Medina would have been ineligible to sit on the decision and the conflict would not have been resolved.</p>
<p>I don't think that we can say that our rule is full proof but we think that it is -- creates much more certainty and will avoid delays in the functioning of the en banc court.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Mr. Elman.</p>
<p>Argument of Philip Elman</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Mr. Chief Justice.</p>
<p>Section 1 of Title 28, United States Code provides -- the Supreme Court of the United States shall consist of a Chief Justice of the United States and eight Associate Justices, any six of whom shall constitute a quorum.</p>
<p>That language exactly parallels 46 (c), “a court en banc shall insist.”</p>
<p>If 46 (c) is to be interpreted as meaning a court en bank shall include, but shall not be limited to all active circuit judges of the circuit, it would be very difficult not to read Section 1 of Title 28 as meaning the Supreme Court of the United States shall include, but not be limited to the chief justice and eight associate justices.</p>
<p>On the question of the disqualification of retired members of this Court to participate in cases which they heard before retirement, there's no provision of the statute which says that they may not do so but there is a provision of the statute which provides affirmatively what duties -- what judicial duties may be performed by members of this Court.</p>
<p>That's Section 294 (a) of the Code which provides that any retired chief justice of the United States or associate justice of the Supreme Court may be designated and assigned by the Chief Justice of the United States to perform such judicial duties in any circuit including those of a circuit justice as he is willing to undertake by implication since the statute does not authorize the retired justice to be designated and assigned to sit in this Court, he may not do so.</p>
<p>The same argument we submit, same line of statutory construction should apply to Section 46 (c).</p>
<p>We do not think that this Court, unless it gives the words different meanings and different provisions can say that a court en -- en banc shall consist of -- of active circuit judges of the circuit who sit when the case is heard.</p>
<p>Mr. Justice Burton as I recall retired at a time when there were cases that he had participated in it remained undecided.</p>
<p>Now, that was true of Mr. Justice Minton and other justices who -- who retired from this Court.</p>
<p>You cannot say and it has never been suggested by anyone so far as we know that because he was -- the retired justice was a member of the Supreme Court consisting of a chief justice and eight associate justices of whom he was one and therefore, could participate in the decision and cast a vote after he was retired.</p>
<p>Retired judges of the Circuit -- of the -- of the Courts of Appeals maybe assigned judicial duties as they are willing to undertake.</p>
<p>Section 28 U.S.C. 294 says that any retired circuit or district judge may be designated and assigned to perform such judicial duties in any circuit as he is willing to undertake.</p>
<p>But that doesn't permit him to be assigned to judicial duties in any circuit that the statute says he is incompetent to undertake, anymore than that -- that would be true in the case of this Court.</p>
<p>In respect to en banc proceedings, a retired justice -- a retired judge is no different from a resigned judge.</p>
<p>Now, there have been some citations given to Your Honors.</p>
<p>We've discussed them in our brief and I'll -- and I -- I think perhaps there's been an indiscriminate proof of those cases and I will repeat.</p>
<p>There is no case in which any judge, retired circuit judge has sat in an en banc proceeding after his retirement, no case.</p>
<p>If he has retired before the en banc court was convened, there is no case in which the retired judge has sat.</p>
<p>There is no case in which a retired judge has voted to grant rehearing en banc.</p>
<p>There is a different problem as to denying rehearings en banc, they are participating in the deliberations.</p>
<p>There is no case in any circuit in which a retired judge or an assigned judge has cast an effective vote to grant rehearing en banc.</p>
<p>There is the related problem as to three-judge courts, the problem imposed by the Goldfine case numbered 36 -- 396 pending our petition for certiorari.</p>
<p>As I said, Section 46 (c) deals only with en banc proceedings and has nothing to do with three-judge decisions.</p>
<p>The only question -- the only possible question in those cases is whether -- where a judge has retired after the hearing but before the decision, whether it is necessary that there'd be an additional formal written designation and assignment.</p>
<p>There isn't a question of his competency to sit.</p>
<p>Of course a retired circuit judge may continue to sit if he is assigned.</p>
<p>The only question is the -- the formal one and no --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Why do you call it formal because all of this is formal?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: There's a difference between -- there is a --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Why do you call it formal?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: -- difference between the question of power --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Well that --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: -- which cannot be cured by the any piece of paper --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Well --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: -- no matter by who signed and there's the question of what kind of -- what is meant by the word designation and assignment?</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: But that assumes that designation is formal and Congress may have made -- may have made the requirement as a piece of paper, the essential things.</p>
<p>I don't see that the argument is advanced by calling that formal and this power.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: I withdraw the word formal.</p>
<p>All I -- all I'm suggest -- all I'm saying is that as to three-judge panel, participation by a retired judge, there is no question or -- as to his power, his right, his competency --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: None.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: -- qualification.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: None if the requirement of the statute is fulfilled.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: That's right.</p>
<p>And the question is whether the statute requires a chief judge who -- who sits alongside judge -- whether chief -- putting it concretely, whether Chief Judge Woodbury had to give Judge Magruder sitting in the very same case --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Yes.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: -- and a piece of paper saying -- saying, "I hereby assign you to sit in this case which -- in which you've been sitting all along and -- and in which you and I and -- and the third judge (Voice Overlap) --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: But -- but you answered Justice Black earlier that you don't have to bother by policy considerations if the statute commands.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Precisely -- of course and -- and the question is what does a statute command in a three-judge --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: It says it should be designated.</p>
<p>I don't have to go beyond if Congress wants to make a red tape or a blue ribbon of requirement, I must vow to it.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: But the statute doesn't say that a designation shall consist of a piece of paper and to sit in that situation.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: But if you say that definition is satisfied because the -- and presumably, he did that to him, that's a different story again.</p>
<p>But I don't like to have cases of this technicality disposed of.</p>
<p>And by technicality, I don't need to use an invidious adjective.</p>
<p>I simply say confining word.</p>
<p>That's what I mean by a technicality.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: That problem is not presented in this case.</p>
<p>I mentioned it only because counsel has -- has referred to that situation which when I -- I am hoping only to make the point that it's distinguishable and raised it that way.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Yes.</p>
<p>But you also mentioned that in your briefs and has -- has offered a great line to be drawn and --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Only to distinguish what is not before the Court.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: I don't think I have to shut off while considering the whole nature of these problems or what to do with this conventional fact that retired judges are as a matter of fact, as a matter of practice, as a matter of design, fulfilling upon through of those who are really active judges.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Yes, in all situations except en banc situations that it's the same.</p>
<p>The only question is one of the designation and assignment.</p>
<p>As to en banc, we repeat, even the -- even the -- in a certified designation and assignment signed by all of the members of this Court and the -- and the judicial conference and all the judicial counsels couldn't possibly give judgment, namely the right to participate in this case en banc.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: Just before you sit down, Mr. Elman.</p>
<p>Have you -- have you -- are you telling us that this precise situation has never arisen or --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: I am telling you that this is the only case in which this problem was discussed.</p>
<p>It is the only case in which counsel has objected to a -- the participation by the retired circuit judge in the decision.</p>
<p>There are -- there are cases which we have mentioned which reach same factual situation, was presented but wasn't referred to/ There are the two-third circuit cases involving Judge Maris as the Price case in the Ninth Circuit involving Judge Healey, nobody mentioned --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: And Hertzog in the Ninth Circuit.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Hertzog -- Hertzog and Sawyer in the Ninth Circuit, different results, nobody discusses it, counsel don't -- doesn't raise it.</p>
<p>The Hertzog came here on petition for certiorari and wasn't advanced.</p>
<p>The curious thing, this is the first case in which the problem seems to have been --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: This precise question is what we are talking about.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Yes.</p>
<p>And when the judge -- when Judge Clark in his dissenting opinion here that first raised the problem --</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: By this precise question.</p>
<p>I mean the case of a -- of a circuit judge who was concededly by any test was an appropriate proper member of an en banc court because he was an active circuit judge at the time of the convening of that court.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Yes, sir.</p>
<!-- Potter_Stewart--><p><b>Justice Potter Stewart</b>: But who's subsequently and prior to the announcement of the decision, retired.</p>
<p>That's the precise question.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: That's right.</p>
<p>That precise problem was discussed only in this case.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: And you don't mean to leave on me the impression for the -- stir the thought that this is so unique and unimportant, a trivial a situation, the writ -- that the writ should be dismissed as improbably be granted.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: I think -- I think it's important that the question be settled so that it doesn't become a widespread practice.</p>
<p>If it's settled right, it's unimportant.</p>
<p>If it's settled wrong, it -- it would become very important.</p>
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Featured:&nbsp;</div>
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Thu, 29 Nov 2012 22:22:59 +000084902 at http://www.oyez.orgU.S. v. American-Foreign Ss. Corp. - Oral Argument, Part 1http://www.oyez.org/cases/1950-1959/1959/1959_138/argument-1
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Case:&nbsp;</div>
<a href="/cases/1950-1959/1959/1959_138">U.S. v. American-Foreign Ss. Corp.</a> </div>
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Transcript:&nbsp;</div>
<p>Argument of Philip Elman</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Number 138, United States, Petitioner, versus American-Foreign Steamship Corporation, et al.</p>
<p>Mr. Elman.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Mr. Chief Justice may it please the Court.</p>
<p>This case is here on certiorari to the Second Circuit.</p>
<p>The problem concerns the proper composition of a Court of Appeals when it decides a case en banc, as distinguished from a three-judge division or panel.</p>
<p>And the question is whether Section 46 (c) of Title 20-A which is set out in the Government's brief beginning at the bottom of page 2 whether that Section which defines the composition of a court en banc as consisting of all active circuit judges of the circuit.</p>
<p>Whether that Section precludes a circuit judge, who retires after a case has been submitted to the Court of Appeals en banc while the case is still under advisement under consideration.</p>
<p>Whether he is precluded under the statute from participating in the decision of the case because it is retirement which in this particular instance occurred some five months before the case was decided.</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Was he active at the time that the Court took proceeding?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Yes, Mr. Justice, he was.</p>
<p>Now, the --</p>
<!-- William_J_Brennan--><p><b>Justice William J. Brennan</b>: Now I suppose he participated in oral argument, did he?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: The case was not -- the case was not heard on oral argument before the court en banc.</p>
<p>The oral argument was before the three-judge panel.</p>
<p>And the case was submitted on the briefs to the en banc before it.</p>
<p>Now, before going in to the details of the facts, I think, it might be helpful to the Court to have in mind the exact language of the statutory provision governing en banc proceedings of the Courts of Appeals.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Mr. Elman, before I get to that may I ask, was there any formal assignment of -- of the judge to -- to act in this case after he retired?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: I don't believe so.</p>
<p>So far as -- so far as the records of the court -- clerk's office and record in this case are concerned, there is no designation in assignment and we don't think it makes any difference.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: I was going to ask --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: We're willing to -- we're willing to assume that if it were proper for the retired judge in this case to participate in the decision en banc, if he did have a designation in assignment, we're willing to assume that such a designation was made.</p>
<p>So, if we make absolutely no contention based upon the absence of the designation or assignment so far the en banc --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: -- you put that entirely clearly if Judge Clark had given the judgment being a formal designation.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: The day he retired.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: You still would say he would be disqualified.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Yes, sir.</p>
<p>And the reason -- the reason we say that, is that Section 46 (c), we think in terms made Judge Medina from the date of his retirement incompetent to sit in an en banc court as distinguished from a three-judge panel court.</p>
<p>Now, Section 46 (c) set out on page two of our brief at the bottom provides that cases in controversy shall be heard and determined by court or division of not more than three judges, unless a hearing or rehearing before the court en banc is ordered by a majority of the circuit judges of the circuit who are in active service.</p>
<p>Now, that latter clause was before the Court in the Western Pacific Railroad case which was here several terms ago and the Court held there that the statute is a grant of power to the Courts of Appeals to sit en banc.</p>
<p>It does not prescribe any particular procedure which the Courts of Appeals must follow in determining whether a rehearing en banc should be ordered.</p>
<p>It doesn't require that a petition for rehearing be filed and so on.</p>
<p>The only limitation so far as the Court of Appeals' power to sit en banc is concern or in determining whether to sit en banc, is that the hearing or rehearing must be ordered by a majority of the circuit judges of the circuit who are in active service.</p>
<p>And then comes the sentence which we think is dispositive here.</p>
<p>Finding the composition of the en banc court if it does decide to sit that way, a court en banc shall consist of all active circuit judges of the circuit.</p>
<p>Now, there's no problem here about Judge Medina's being a circuit judge.</p>
<p>There's no problem about his being a Circuit Judge of the Second Circuit.</p>
<p>The keyword there is “active”.</p>
<p>He was active when the case was submitted to the court en banc, he was retired when the case was decided.</p>
<p>The statute says cases and controversy shall be heard and determined by a court as defined.</p>
<p>The Government's position in a nutshell is that the court en banc must be properly constituted not only at the time the case is heard but at the time it's determined.</p>
<p>And that Judge Medina at the time the case was determined by the court en banc was not an active circuit judge of the circuit.</p>
<p>And for that reason, the judgement entered by that improperly constituted en banc court was invalid.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: In other words, you read over into the last sentence, occurred and determined by the --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Yes, sir we do.</p>
<p>But even if -- even if that's -- even if the language heard and determined wasn't specifically on the statute.</p>
<p>We would -- we would not think that would make to -- too much of a difference because after all the function of a court, the one function of a court to which everything else is ancillary is the function to decide.</p>
<p>That's why a court exists and the crucial action of the Court is the decision and Congress granted the power of the Court of appeals to sit en banc and to decide cases en banc and it entrusted that power only to all active circuit judges of the circuit.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: May I ask you a question that isn't relevant to this case but for completeness sake?</p>
<p>May -- does the retirement of granting a rehearing or hearing en banc required to be done by all active circuit judges?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: The Western Pacific Railroad case makes it clear that the panel, the three-judge panel, no matter by -- how it's constituted, the three retired circuit judges on the panel may initiate the process of rehearing en banc.</p>
<p>And conceivably under the Western Pacific Railroad case may decide against submitting it to the entire Court if all the act of circuit judges of the circuit are willing to permit such a procedure, so that --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: So the (Voice Overlap) decide that, did it?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: The opinion is extremely broad.</p>
<p>I think it was written as a -- as a comprehensive guide to the Courts of Appeals in formulating procedure.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: There's never been anybody thought about this problem, is there?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: I couldn't say.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Well, I mean --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: So far as this mediocre --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: (Voice Overlap) it didn't say any more -- the opinions don't indicated that, do they?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: When -- if you say the immediate problem and mean that problem of Judge Medina participating a decision en banc here, I think it's --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: No, no.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: -- perfectly clear --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: I'm not talking about that.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: And nobody thought of that.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: I just want to know whether what the position of the Government is on the question of determining whether there should be an en banc hearing or rehearing.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: We think, that a rehearing en banc can be ordered only by a majority of the circuit judges of the circuit who are in active service.</p>
<p>Only a certain -- an active circuit judge of the circuit may cast an effective vote to grant to order rehearing.</p>
<p>It does not follow that he may not -- that a retired judge or an assigned judge may not participate in the deliberations preceding that action of the Court.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Do you think --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: But how can you search whether you did or did not have an active share?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: We don't think it makes any difference whether he had an active share or not.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: You mean --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: A retired judge can vote to deny, it doesn't under our view, the statute does not granted --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: But granted -- what I want to know that evidence didn't make myself clear.</p>
<p>May a panel of three call upon the grant of motion for rehearing en banc --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Yes.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: -- include a nonactive, a retired judge in this convention sense of (Inaudible)?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: The panel may vote to deny.</p>
<p>It certainly may not vote to grant rehearing en banc because that can be done under the statute only by a majority of the circuit judges in the circuit who are in active service.</p>
<p>There is nothing in Western Pacific that says that statues can be construed or should be construed otherwise.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Do you think --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: But if -- if -- if I may include this, but if they're nonactive members, one of the three --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Yes.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Who knows what inference he had in getting two active, one is to grant.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Two of the active three -- two the active three couldn't vote to grant a hearing en banc.You have to have the -- all of the circuit judges of the circuit who are in active service.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: A majority.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: A majority circuit judge of the circuit not of the panel.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Well, suppose there are only -- suppose there are only four active circuit judges --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Yes.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: -- and two of them sit on the panel?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Right.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: And they couldn't grant, could they, a rehearing?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: If there two or four?</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Two of four.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Two of four could -- would not be majority if it's a -- it's a -- if -- if the Court of Appeals consist of four active circuit judges, only three could order a rehearing en banc.</p>
<p>That's what the statute says.</p>
<p>There's nothing ambiguous about it.</p>
<p>Now, the important point is that it makes a difference whether the rehearing en banc is granted or denied because so far as denial is concerned there's nothing in the statute which -- which precludes the participation of a retired judge or a judge, circuit judge, from another circuit from -- from -- from saying to the -- to the entire --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: And on top of that, it would have been granted if this -- that a persuasive and powerful nonactive judge hasn't been one of the three denying it.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: I don't think, there's anything in the statute advices his discussion of the thing.</p>
<p>There's been a -- the case where the judges were qualified to vote.</p>
<p>The statute deals with who votes not who talks to whom.</p>
<p>There's nothing improper in the -- in -- in--</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Yes, but talking may affect voting.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: But the statute doesn't bar it.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Well, I know but you got to give congruity to the statute, those irrelevant considerations.</p>
<p>And you don't read this -- You don't need a jurisdictional statute mechanically that way because --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: We don't --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: -- this Court held that three equals five.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: We're not here arguing that -- that the statute prohibits talk.</p>
<p>All we are -- all we are arguing here is does statute prohibit to vote.</p>
<p>If the consequence of that decision is that it prohibits talk, the question may arise -- may arise but not in this case.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: You -- I take that your view is that the judicial counsel which means before Court of Appeals, I can't get use to could not under this statute pass a an order saying that all petitions for a rehearing en banc are to be referred to and determined by the panel which heard the case.</p>
<p>Do you say that would not be permissible?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: You say determined, I -- I ask what do you mean grant or deny or both?</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: I mean granted or denied, either one.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Well, I don't think that even a judicial counsel with all its broad powers --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: But as we refer you could do that on the Second Circuit informally for a considerable period.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Grant.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Yes.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: We have -- we have never found the case.</p>
<p>We have not found the case of any --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: It had been reported it was informal but I am sure the other circuits that act exactly in that way.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Well, if that is done, it's done with the concurrence and authorization of a majority --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: It is.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: The circuit judges of the circuit -- well --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: But you say that that could not be done under -- under your view of the statute, you say, “don't agree.”</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: No, no.</p>
<p>If a majority of the circuit judges of the circuit who are in active service are willing to delegate to -- to the panel the function of granting rehearings en banc, I think, that's -- whether that's (Voice Overlap) --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: That could be done -- it could be done?</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Yeah it could be on your -- on the basis of your argument that all I have to do is to read in active service equal active circuit judges, I don't see how they -- how you can by consent upon order on the rule of the Court --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Well, I think this is --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: -- to grant jurisdiction.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: This may begin -- this maybe cutting it very fine with Mr. Justice.</p>
<p>But the statute gives power to a majority of the circuit -- judges of the circuit who are in active service.</p>
<p>They and only they have the -- have the power to order a rehearing or hearing before the court en banc if they choose to allow that power to be exercised by a three-judge panel acting for the majority of the circuit judges of the circuit who are in active service.</p>
<p>I think, and I must say that it isn't presented by this case and I maybe speaking perjuriously.</p>
<p>But I would suppose that it determines an interpretation that Western Pacific Railroad case would be that that could be done, but that doesn't answer the question here, because in this case you do not have a majority of the circuit judges of the circuit who are in active service saying that we're going to authorize a retired judge to vote in a decision of the merits en banc.</p>
<p>Now, in this case the active judges of the circuit in active who -- who participated in the en banc proceedings were evenly divided.</p>
<p>You had Judges Clark and Waterman on one side, Judges Hincks and Moore on the other, Judge Lumbard, the fifth active circuit judge who had been United States Attorney disqualified himself.</p>
<p>So the active circuit judges were evenly divided and the matter was decided by the vote of the retired judge, Judge Medina.</p>
<p>So that everything that we have been talking about in relation of the -- to possible scope of the -- of the delegation of the power of the active circuit judges of the circuit in relation of granting petitions for rehearing has nothing to do with -- with the -- with the Second Circuit --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: May I put his hypothetical to you?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Yes, sir.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Supposing you had an order of the judicial counsel delegating to the panel that it heard a case, the power to decide deny or grant a petition for rehearing, which I take it you say, would be permissible under Western Union Pacific, so far are we together?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: I -- I -- I think I may have -- I may have --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Well that's --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: -- not appreciated your first question because I did not equate the judicial counsel.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Well -- I used the judicial counsel as a thumbnail for the --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: All right.</p>
<p>As long as you -- as long as you have the power being exercised --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: All right.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: -- by the circuit judge, there's no problem.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: By all the judges.</p>
<p>And so far, you would say that that would be permissible for the circuit to do, majority of the circuit judges to do.</p>
<p>Now, supposing you have a panel.</p>
<p>It is composed of three judges one of whom has retired, retired after the decision of the case but before the motion for rehearing en banc is acted on --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Very common situation.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Could he try -- could he participate in the vote or not?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Certainly not.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Could not.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: No.</p>
<p>And the vote to grant rehearing, the vote of -- of the -- could he sit in the hearing of the en banc.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: That he is --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: No, no.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: That he -- could he -- could he vote -- could he vote to grant or deny the petition for a rehearing?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Oh, yes.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: He could.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Yes.</p>
<p>That's what I said about.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Not sit on the Court.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: I -- I -- I've been focusing, Mr. Justice Harlan, on the -- on the question which is presented by this case which is not who votes on whether a rehearing should be ordered or not but who sits -- who sits on the Court which decides.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Well in other words what you are saying is this that although a retired judge could participate in the -- the act of granting or denying the petition for rehearing, a judge who is an active judge after the petition for rehearing has granted en banc cannot participate in the decision on the merits after he is retired?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Because there's all the difference in the world between the problem of how you -- how you work out the procedures for -- for ordering or not -- or denying rehearing en banc which the Western Pacific Railroad opinion is addressed to and the second problem presented by this case is to which the statute as -- as -- as we read it are clear.</p>
<p>Once rehearing is ordered before whom?</p>
<p>Now, Judge Hincks in his opinion for the Court of Appeals here rely on Section 43 (b) of the 48 Code which we have in our brief in the appendix, page 30.</p>
<p>It's also quoted by Judge Hincks at page 139 of the record.</p>
<p>And that provides that each Court of Appeal shall consist of the circuit judges of the circuit in active service.</p>
<p>The circuit justice and justices or judges designated or assigned shall also be competent to sit as the judges of the Court.</p>
<p>Now, Judge Hincks construed Section 43 (b) in relation to 46 (c) and it said -- he said that the -- he said on behalf of himself and Judge Moore and Judge Medina that under 43 (b), any judge which would include the circuit justice and any justices or judges designated or assigned, any judge who's competent to sit with the Court of Appeals is also a member of the Court of Appeals en banc.</p>
<p>Now first of all that -- that is a rather awkward reading of its statute.</p>
<p>43 (b) defines a Court of Appeals as consisting in the circuit judges of the circuit in active circuit -- in active service.</p>
<p>That's a definition of who is a member of the Court of Appeals.</p>
<p>Then it goes on to authorize other judges designated and assigned to sit as judges of the Court.</p>
<p>It does not make the judges who are designated to assign members of the Court of Appeals.</p>
<p>Now, 46 (c) dealing specifically with en banc proceedings says that a court en banc shall consist of all active circuit judges of the circuit.</p>
<p>It does not go on as 43 (b) does and provide that the -- the circuit justice and justices or judges designated or assigned shall also be competent to sit as judges of the en banc court.</p>
<p>Now, if -- if Judge Hincks is right, what -- what is left to that provision of 46 (c) if any justice, any judge and this isn't just limited to circuit judges, this isn't limited to the circuit judges of the circuit, it isn't limited to district judges, it applies to judges of the Court of Claims, the Court of Customs and Patent Appeals, Customs Court whether they're retired, whether they're active.</p>
<p>It doesn't make any difference when they were retired.</p>
<p>The scope of the power of designation and assignment is extremely broad.</p>
<p>It covers practically every federal judge.</p>
<p>Now, if any federal judge active or retired of any federal court is competent to sit as an -- as a member of the en banc court because of Section 43 (b), what is left to 46 (c), it says --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: And as to the justice as well.</p>
<p>Preliminary to that would you tell me whether 43 (b) and 46 (c) were contemporaneously drafted and adopted?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: They both -- they both appear in the 1948 Judicial Code.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Originally?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: 46 (c) came into the statute for the first time in 48 and the 48 Code in effect codified the decision of this Court in the Textile Mill -- Mills case.</p>
<p>That came in the 1948, I think and I may not be -- altogether accurate about this.</p>
<p>My -- my feeling is that 43 (b) goes much farther back, because it deals with designation and assignments which certainly didn't come in to the statute of 1948, it's an old provision.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: I suggest this to you, we are going to cut if fine -- let me try cutting this fine.</p>
<p>46 (c) says that in any event the court en banc can consist of all active circuit judges in any event, five or seven or whatever they are, but since the decision en banc is as important as that that had all of those who are qualified to sit to the Court of Appeals join in this determinative decision.</p>
<p>So that the court en banc shall consist of all active circuit judges at a minimum as a prerequisite for convening the court en banc, but addition thereto, the circuit justice may join them.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: You're suggesting the circuit justice?</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: I'm suggesting that --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: At -- if anyone else Mr. Justice?</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: All who are qualified to sit in the Court of Appeals that this should be so impressive a tribunal that all those who can exercise the Court of Appeal function should be included in the court and in the en banc composition.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Now, that would cover --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Now that is -- that is you cut fine.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Well, I don't think that is cutting it fine.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: In other words, in answer to your suggestion --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: I don't it is cutting it fine.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: That's a suggestion that otherwise a court en banc should consist of all active circuit judges means nothing.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: But what is the limit?</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: It means an indispensible prerequisite.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: The statute says the court en banc shall consist of all active circuit judges of the circuit.</p>
<p>Let's assume arguendo that that also includes the circuit justice, and that would not be drawn --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: In addition -- in addition?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: In addition.</p>
<p>Does it follow that it also includes every federal judge who maybe designated and assigned.</p>
<p>This isn't cutting it fine.</p>
<p>There would be no limit on the size of the Court of Appeals en banc and it would reduce the purpose of en banc proceedings to an utter absurdity.</p>
<p>The purpose of an en banc proceeding is to resolve or avoid intra circuit conflicts.</p>
<p>En banc proceedings are -- are not the rule, they're the exception.</p>
<p>They -- they arise in a situation where, as Judge Maris put it, there's a serious strain within the Court.</p>
<p>You got a cut -- one panel either deciding or about to decide a case in a particular way.</p>
<p>Other judges of the Court may think that they would decide the matter another way, suppose they sit a year or two years from now and the problem arises, what is -- what do they do?</p>
<p>Do they follow the panel decision with which they disagree, even though -- even though they think it's wrong?</p>
<p>Do they overrule it?</p>
<p>Now, the en banc proceeding is -- is intended to avoid that kind of -- of internal family disagreement which this Court in the Wisniewski case, I believe it's pronounced, said it was the problem of the Court of Appeals to resolve not to bring here.</p>
<p>Now, who should sit on this en banc court to lay down the law in the circuit for the future guidance of the three-judge panels that are going to be sitting?</p>
<p>Should it be judges of the Court of Customs and Patent Appeals retired or active or retired district judges?</p>
<p>Now in this very case, you had Judge Leibell sitting on the original panel along with Judge Hincks and Judge Medina.</p>
<p>Judge Leibell was a retired district judge sitting by designation in this very case.</p>
<p>He withdrew from the case as soon as the rehearing in en banc question arose.</p>
<p>Now, you have Judge Hand, Judge Swan, and Judge Chase retired circuit judges of the circuit.</p>
<p>None of them has ever sat, so far as we know, in any court convened en banc.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: I believe (Voice Overlap)</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: That's another important fact.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: (Inaudible) en banc, Judge Hand.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: After his -- in the case in which rehearing was ordered after his retirement?</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: You correct me, but I believe Judge Clark with tears in his eyes, weeping heavily he said, he was very sorry that he should try to disqualify Judge Hand because he himself had summoned into sit in the case.</p>
<p>Am I wrong about that?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: I don't know the case.</p>
<p>We've looked for these cases and -- and the only case that we have found in which this problem is discussed is this case.</p>
<p>Now it was -- it was -- it appears to have been notice in two Ninth Circuit cases.</p>
<p>And of course, it must come up in other cases from time to time but so far as we know there hasn't been any -- any awareness or at least so far as the opinions in the federal report reflected that awareness isn't shown.</p>
<p>Now, let -- let me finish on --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: I hope you work out the construction of the statute that says I figured to leave a officer to justice.[Laughter]</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Mr. Justice, this is not our suggestion.</p>
<p>We think that the statute says active circuit judges of the circuit.</p>
<p>If you read the statute the way it's written, there's no problem at all.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: But we know but -- but we always read the statute as it's written with such light in addition that we can cast upon it</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Well, the light -- the light which is cast upon it by Section 43 (b) here is that if you read 43 (b) into 46 (c) so that any federal judge of any court, active or retired, can sit with the -- with the en banc -- banc court, you have destroyed, in our opinion, the very valuable purpose of the en banc court, which is to have the active circuit judges of the circuit lay down a law, a limit in the circuit, eliminate these conflicts real or potential.</p>
<p>If -- if it would -- it would in our view distort Section 46 (c), it would nullify, it would leave it no scope and -- and -- and it would have no sense at all.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: I am not saying I am going to read it that way but you got to do better than just to make fun of it and I'll put these practical considerations to you.</p>
<p>Judge Learned Hand and Judge Swan are for all practical purposes active judges.</p>
<p>He's not in the technical sense.</p>
<p>They are acting judges in that circuit.</p>
<p>I do not think it would destroy, I can hardly conceive that it would destroy the working of en banc if those wise and experienced men were also added with the present younger and much more vigorous minded, but I am not sure wiser men were now active as circuit judges.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Mr. Justice Frankfurter, the views you've expressed are the views which were put to the Judicial Conference at its annual meeting last September.</p>
<p>The Judicial Conference agreed that an amendment to 46 (c) in order to take care of retired judges like Judge Hand, Judge Medina, when they sit on the original panel they ought to be allowed to sit on the en banc court.</p>
<p>It was -- that was a fine idea and they proposed an amendment to Section 46 (c).</p>
<p>The Judicial Conference report also says that is was the view of the Committees on Court Administration and Revision of the Law that under the statute, that's the statute as it's now, not as it's going to be amended.</p>
<p>Under the statute only judges who are in regular active service, that is those who have not retired, are the judges in active service to which the statutes refer.</p>
<p>Now, it maybe that 1948, when this -- when 46 (c) was enacted, nobody thought about this problem.</p>
<p>They -- perhaps they wasn't as acute as -- a shortage of active judges as there is now.</p>
<p>There weren't as many retired judges sitting actively as there are today and the --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Well that report, however, it doesn't purport to deal with the particular questions we have here.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Well, that --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Well that report deals with is desirability of having retired judges sit in en banc.</p>
<p>They don't direct themselves at all to the proposition of active judge.</p>
<p>The man was active at the time the en banc courts convened were carrying afterwards.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: In Section 43 (b) means with Judge Hincks and though it mean -- meant in this case, there would be no problem, he would need any amendment to 46 (c), because any judge who could be designated and assigned which would certainly include a retired circuit judge who sat on the original panel could be -- could be a member of the en banc court, You wouldn't need any legislation.</p>
<p>Now, let -- let me --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: I didn't understand in that way.</p>
<p>May be I read it wrong.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Well, it -- it doesn't deal specifically --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: No.</p>
<p>But that's --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: -- with the problem that you have here as to whether an active circuit judge at the time of the hearing, I agree with you, but if -- if -- if the decision below in this case is right that any judge who can be designated and assigned under 43 (b) may also -- may also be a member of the en banc court.</p>
<p>And it's an a fortiori conclusion that Judge Hand and Judge Medina who -- who -- who sits in a -- the hearing --</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: I don't see that it's relevant.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: All right.</p>
<p>Well, he certainly maybe -- he can't -- he is designated and assigned when he -- when he -- when as an active judge, he is a member of the en banc court.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: But there is nothing in Judge Hincks opinion to suggest that the retired judge, retired before an en banc order is put down and composed the Court the en banc court initially, that he -- he isn't suggesting that.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: That's quite true but the rationale of his -- of -- of -- of the decision is 43 (b), and 43 (b) just cannot be accepted consistently with 46 (c).</p>
<p>Now, I think the point may perhaps be more clearly illustrated by comparing what was done in this case with another case in which Judge Medina participated just about the same time.</p>
<p>That was the Reardon against California Tanker case, in 260 F. 2d, which we cited in our brief.</p>
<p>Now that case was argued November 8, 1957 before Judge Swan who is retired, Judge Medina and Judge Waterman.</p>
<p>Medina and Waterman, Judges Medina and Waterman were still in active service.</p>
<p>Now on March 1, 1958, Judge Medina retired.</p>
<p>The case was decided the following month April 7, 1958, opinion by Judge Swan, concurred in by Judge Waterman with Judge Medina dissenting.</p>
<p>Now, Judge Medina's participation in a case decided by a three-judge panel after his retirement raises no problem at all under 46 (c).</p>
<p>46 (c) has nothing to do with three-judge panel decision.</p>
<p>And there were some 30 odd cases in which Judge Medina had sat before he retired in which he participated in the decision after his retirement.</p>
<p>It's not an uncommon situation.</p>
<p>There isn't any connection with Judge Magruder and almost every retired circuit judge and the uniform practice throughout the country has been that there's no reason in the world, why a circuit judge who was sat in the case where a three-judge panel can't -- can't proceed to with what the decision notwithstanding his retirement, because a retired judge does not lose the power to participate in that kind of action of the Court of Appeals, simply by reason of his retirement.</p>
<p>It's 46 (c) that presents the problem and that's limited to the en banc courts.</p>
<p>Now, in that Reardon case after the three-judge panel decision in which Judge Medina participated dissenting, petition for rehearing en banc was granted and the -- the -- the order recited that was by vote of the majority of the judges of the circuit in active service.</p>
<p>And so far as we can tell from the reports, every time the Second Circuit grants rehearing en banc, it's by vote of the majority of the judges in active service.</p>
<p>In any event, in that case, rehearing was granted and the en banc court convened and reversed the panel decision, Judges Swan and Medina not participating.</p>
<p>So that in the Second Circuit, as in every circuit, it is clear that where a -- where an en banc hearing is ordered after the retirement, the retired judges don't sit.</p>
<p>And the reason why they don't sit is Section 46 (c) which has been construed and applied since 1948 as meaning that whatever a retired judge can do, retired circuit judge can do after his retirement, and he can do practically everything that he did when he was an active circuit judge.</p>
<p>The one thing he can't do after his retirement is sit as a member of the en banc court.</p>
<p>Anymore that when the justice of this Court retires, he cannot participate in the actions, in decisions of this Court even as to cases that were heard and -- before him, cases in which he participated in the conference discussions.</p>
<p>He may even have written a draft opinion, but when the justice of this Court retires, he is through so far as this Court is concerned.</p>
<p>He maybe assigned to the circuit judge -- courts, he can be assigned to the Court of Claims, he can be assigned to the District Court, but he cannot be assigned to this Court.</p>
<p>It's a disqualification which cannot be cured by a designation or assignment and the reason is that there is no statute which authorizes a retired justice of this Court, once he retires to participate as a justice in any decision of this Court.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: What are the reasons that have been advanced for drawing that distinction between the circuit judge, sitting after he retired in trial and not sitting in an en banc?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Statute.</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Are there any reason to accept the statute, I may ask?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: The statute -- the statute says --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: I am -- I am familiar with the statute, I am --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Statute, I think statute says --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: -- talking about the practical reasons suggested for one side or the other.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Well, the statute -- the statute doesn't make it necessary to look at the reasons, Mr. Justice Black, because if they are retired --</p>
<!-- Hugo_L_Black--><p><b>Justice Hugo L. Black</b>: Well then there are -- then they are none that you can take up on either side?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Oh, I think they are very -- very real parallels between the -- the retired circuit judge who sits in an en banc proceeding and a retired justice of this Court, because an en banc decision is -- is so far as it lays, it -- it -- it becomes an authoritative expression of the law in that circuit, which isn't going to become here for review in the ordinary courts.</p>
<p>That's a -- that's a final decision and -- and -- and it's just -- it would be just as inappropriate for -- for a retired judge to participate in that kind of a thing, in that kind of proceeding as retired justice of this Court.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: It would then be on policy grounds because of the judicial counsel just relied on the proposed legislative recommendation.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: But the recommendation is a very narrow one.</p>
<p>The recommendation is limited to retired circuit judges of the circuit who have sat in the original hearing.</p>
<p>There are various -- various specific qualifications.</p>
<p>It doesn't mean that Judge Leibell could sit in this -- in en banc proceeding.</p>
<p>It doesn't mean that Judge Magruder could sit.</p>
<p>It doesn't mean that Judge Hand could sit unless he was a member of the original panel.</p>
<p>Now, that there are -- the Judicial Conference weigh this policy considerations and has come forward with its proposal.</p>
<p>It was introduced by Congressman Celler early in this month.</p>
<p>No hearings have been held.</p>
<p>That's where the question --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Let me be --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: -- of policy ought to be considered entirely.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: That would be (Inaudible) advocate.</p>
<p>I think that limited authorization makes it even worst that a fellow who was parted through a panel decision and then sits in an en banc and perpetually an ad hoc decision.</p>
<p>That seems to me to be even less desirable.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Mr. Justice, I think the place to decide these questions of policy is -- is in Congress upon the recommendations of all agencies concerned.</p>
<p>I don't think in this Court we should have to decide whether it would be a good thing or a bad thing to read this statute the way Congress wrote it in 1948, even though there might be some policy considerations, which we don't really think are very serious, that It might cut the other way.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: -- if this case doesn't open up -- doesn't open the door wide, this case represents the various special situation, namely, a judge -- this all can be obviated and you suggested in your brief as I quickly faced it, namely, he holds -- withholds his retirement until he's through with that case.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Well the --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: It is not world-checking problem, is it?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: This is -- this is far from a world-checking problem.</p>
<p>I think, the fact that this is the first case since 1948 with this -- with the judges of the Courts of Appeal have talked about, it showed that it's far from that.</p>
<p>In the fiscal year 59, there were 3753 cases decided by the Courts of Appeals throughout the country.</p>
<p>There were 22 hearings en banc, and there were six circuits in which there were no hearings en banc.</p>
<p>Now that shows the order of magnitude of this problem.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: There were no hearings en banc in the Second Circuit up until Judge Learned Hand retired as the -- as the Chief Justice.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: That's right.</p>
<p>Now what we -- now the argument is made -- the argument is made that if you apply this statute the ways it's written, there will be all kinds of practical problems of reconstituting the courts.</p>
<p>Suppose a new judge -- new circuit judge is appointed, does that mean you have to start all over again?</p>
<p>Why -- of course not.</p>
<p>Anymore than when a justice is appointed to this Court, he participates in -- in cases that were heard and considered by the Court before he took his sit.</p>
<p>Ordinarily, the rule of judicial practice is that a new judge, if he's not familiar with -- with the case and if it's gone so far that ought to be decided without his participation, he won't participate, but of course, the Court of Appeal, just like this Court, can set the case down for rehearing depending on a particular circumstance.</p>
<p>And we've cited cases in our reply brief where both have been done.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Supposing the panel divided the en banc had gone the other way and Medina and Hincks were stuck with their original decision in your favor, do you think you'd be up here? [Laughter]</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Who can say? [Laughter]</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well, if the decision would have been the same, they could've gotten the -- gotten the rehearing.</p>
<p>It couldn't have happened, if that third vote hadn't been in the Court.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: What makes this case a very dramatic case, of course, is that the District Court dismissed these libels on the authority of two Second Court -- Circuit decisions.</p>
<p>The case was heard before a three-judge panel.</p>
<p>Judge Hincks wrote the opinion and he said, “Well we're bound by these two Second Circuit decisions.”</p>
<p>They are very recent ones, and we're -- we don't think that we are to overrule them although it were recent, although we're not sure if we come out the same way.</p>
<p>Now, the first of those cases, the Sword Line case, the panel consisted of Judge Clark and Judge Waterman and Judge Hand dissenting.</p>
<p>Now Judge Clark and Judge Waterman, of course, adhered to their views.</p>
<p>Now, then came up before these three-judge panel with Judge Medina, Judge Hincks and -- and -- and Judge Clark, I beg you pardon, Judge Leibell.</p>
<p>And judge -- this -- this is the -- this is the traditional classic situation of a problem which the en banc proceeding has tend to avoid.</p>
<p>Judge -- Judges Hincks and Medina felt themselves bound to follow these earlier decisions even though they disagreed with them.</p>
<p>And this -- where you have this kind of an intra circuit conflict, the statute says that the en banc court, if it's ordered by majority of the active circuit judges of the circuit, shall consist of those judges and nobody else.</p>
<p>Now, if -- if 46 (c) means, as we think it unquestionably means, that a judge who has retired before the hearing en banc cannot be designated to sit with the en banc court, it's because the statute makes him incompetent.</p>
<p>He's just disqualified to sit there, just as if he had resigned.</p>
<p>A resigned judge can't be assigned to sit with the Court of Appeals en banc and a retired judge is in precisely the same position as -- as a resigning judge as to en banc.</p>
<p>So, that if Judge Medina, after he had participated in the hearing en banc, had decided to resign on his 70th birthday.</p>
<p>He -- the fact -- the fact that he heard the case doesn't mean that he had any power to decide it.</p>
<p>Now, the respondents argue that there's a general principle that once a judge hears a case, he's under a duty to decide it.</p>
<p>Well, as a generalization it's certainly valid but it doesn't carry very far when there's a specific statutory provision that says, he can't decide it because he's incompetent to decide it.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Could I ask you a practical question?</p>
<p>Assuming you prevail here, where there is the consequence, the judge one who is vacated, he goes back to the Court of Appeals.</p>
<p>Could there be a new en banc court?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: We are asking Your Honors to hold that when this case was decided by the Court of Appeals en banc, Judge Medina's participation in that decision was not authorized by Section 46 (c).</p>
<p>The judgment should be vacated by this Court and the case should be remanded to the Court of Appeals for further proceedings not inconsistent with Section 46 (c), which would leave the Court of Appeals with the power and the responsible discretion to decide what disposition of the case should be made by it which is not in violation of the statue.</p>
<p>All we're asking Your Honors to hold is to apply the statute here, leaving to the Court of Appeals the question whether the Court on remand there should be a new hearing en banc before the active circuit judges of the circuit of the -- as -- as they now consist also of Judge Friendly, conceivably Judge Smith, maybe confirmed by the time the case gets back.</p>
<!-- John_M_Harlan--><p><b>Justice John M. Harlan</b>: Yes, but the Government's deal would be, there's no legal impediment to the Court ordering a new en banc hearing?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Certainly not.</p>
<p>Certainly not.</p>
<p>On the other hand, the Court of Appeals might decide that -- that the -- that the last judgment of the Court which was vacated by this one -- this one being invalid, the Court of Appeals might decide that it would like -- it would -- would let the matter rest there.</p>
<p>We don't -- we're not telling the -- excuse me.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Excuse me.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Well, the only -- the only reason the case is here is that we -- we think that it's important that Section 46 (c) not be disregarded.</p>
<p>And we think that if -- if the interpretation given to that -- to 43 (b) by Judge Hincks is accepted there's practically nothing left of 46 (c).</p>
<p>There would be no limit, no ceiling as -- as to this -- as to the composition of the en banc court.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: The order granting en banc hearing which was exposed around fields, around briefs here that was a wholly valid order, was it not?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Certainly.</p>
<p>That was referred to the whole Court --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Yes.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: -- which is --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Why should that be vacated?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: We're not suggesting it should be.</p>
<p>All we're suggesting that it would --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Well, I understood you to say you vacate what the Court -- vacate the judgement in this case and leading the Court of Appeals to -- to anything it please not inconsistent with that.</p>
<p>That would allow to vacate the order en banc.</p>
<p>I don't quite see why that could be done because when that was entered, that was a valid order.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: The judgement that is under review here appears in the record at page 136.</p>
<p>It's the judgement of July 28, 1958 which with -- withdrew the opinion of the three-judge panel in order that the judgment of that three-judge panel be vacated and that a new judgement be entered.</p>
<p>We are asking Your Honors to vacate that judgment now because of Judge --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: I understand that.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: -- Medina's participation.</p>
<p>Now if you do that -- if you do -- if you do that, you leave the status of the case precisely as it was on March 1st, 1958 when Judge Medina retired.</p>
<p>The Court of Appeals --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: And that would leave specifically?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: It would leave the order granting rehearing en banc.</p>
<p>There's nothing wrong with that.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: No, nothing wrong.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Absolutely nothing.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: I simply want to be satisfied with that.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: No.</p>
<p>Nothing wrong.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: That should stay and -- and I think, it would be -- there would be nothing to rule why the Court of Appeals properly constituted according to your view should vacate that, is that?</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: I don't think -- I don't think that if they decided to vacate it, there would be grounds for our coming back here, because that -- whether -- whether rehearing en banc should be vacated is for the Court of Appeals.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Yes.</p>
<p>But -- but since that was not challenged and the challenge --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: That's right.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: -- here is that the judgment --</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: That's right.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: -- following a valid order.</p>
<p>I don't see why denounce the whole world if -- if we can't hear en banc, we'll let the panel judgement stand.</p>
<p>I don't see why they should have any discretion to do that.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: I -- I think that -- that is a question that's not before the Court right now.</p>
<p>The only question before the Court right now is the validity of this judgment of July 28, 1958 and I would like to make one further point of that with this problem that forced it down.</p>
<p>There is an argument here which is presented very seriously that even though -- even though Judge Medina couldn't sit, even though the statute barred him from sitting, even though he isn't -- he wasn't the jury judge when he voted to in this case, still he was a de facto judge.</p>
<p>And so that -- on that the assumption of this argument is that even if Section 46 (c) specifically said, “The court en banc shall consist only of active circuit judge of the circuit and a retired judge cannot vote in the case, even though he was an active circuit judge when he heard the argument of the case still he can't sit.”</p>
<p>This argument would be that, well, if he did sit, it was de facto and therefore this Court shouldn't disturb his judgment.</p>
<p>Now, if the statute means -- means that --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: Well, there is (Voice Overlap)</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Then it wouldn't make any difference what the statute says.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: There is refutal.</p>
<p>There is a refutal on the statute, isn't it?</p>
<p>You yourself said a little while ago, nobody thought about this problem in 48 and there's the lacuna which we say, it shall consist of the active judges and thereby tried in denying that although it began to consist of, it was -- it was of necessity terminated the day before that the opinion came on, he was retired (Inaudible).</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Well I -- I must -- I must direct myself.</p>
<p>I've given you an impression that -- that there is a lacuna in the statute.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: You didn't say it, that's my word and that's my thought.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Well, let me rephrase -- let me rephrase it.</p>
<p>There's no -- nothing in the legislative history of the 48 Code or the bill, and that originally enacted 1941 from which it spread, or the Textile Mills opinion or anything else that relates to this problem which shows that anybody specifically addressed themselves to this particular precise now problem.</p>
<p>But if you look at the whole picture, you'll find throughout in the Textile Mills opinion, very first sentence of the Textile Mills opinion, the question is whether the Court of Appeals composed of the active circuit judges of the circuit makes it.</p>
<p>There's been -- there is no reference at all at any point to the retired judges.</p>
<p>The assumption throughout, and of course, this is negative legislative history and the significance that it has, if Your Honors to decide, but there is no suggestion that anybody thought that at anytime the retired judge could sit in an en banc court, and the statute specifically says that only active circuit judges may sit.</p>
<p>So, we don't think there's any lacuna in the statute.</p>
<p>Now, as far as -- as far as the circumstance that Judge Medina was an active circuit judge, when -- at the time the case has submitted the en banc court was concerned.</p>
<p>If Section 46 (c) means that an en banc court which hears and determines the case may consist only of active circuit judges, then there is no difference as we see it, in the situation where he retired before the case was heard by the en banc court and the case where he retires after, because at the time of the decision of the case, he is disqualified from participating to the same extent as if he had resigned.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: That would be incontestable -- logical, purely logical argument, but there's a different in fact between the board -- the court being properly constituted when it engages to hear and begins the process of determination, and a court which begins the process of determination when the man is disqualified.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: That's right.</p>
<p>There is a difference but should there be a difference in the result if -- if --if the section --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: That's what de facto means.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: That's why --</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: That's the problem of de facto judge.</p>
<!-- Philip_Elman--><p><b>Mr. Philip Elman</b>: Well, suppose judge -- suppose -- this a, of course, fantastically absurd but suppose Judge Medina at the -- after -- after participating properly and validly in the hearing before the en banc court, suppose he had been impeached and suppose he had sat, suppose some -- some -- someone thought that didn't make any difference.</p>
<p>Now, if a disqualification attaches to judicial power, a disqualification which cannot be remedied by designation or assignment by the Chief Judge or the Chief Justice of the United States, the power can't be exercised wether it's resignation, impeachment, or retirement.</p>
<p>And -- and so far as an en banc proceeding is concerned, we think that the statute means that they -- there's as much of a disqualification, as if he had resigned and if -- if there are any -- any -- any difficulties, illogic or any reasons at all why the statute should be change, that's for Congress.</p>
<p>Thank you very much.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Mr. Fort.</p>
<p>Argument of J. Franklin Fort</p>
<!-- J_Franklin_Fort--><p><b>Mr. J. Franklin Fort</b>: (Inaudible) Mr. Becker is arguing.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Oh -- oh, yes.</p>
<p>Mr. Becker, excuse me.</p>
<p>Argument of Arthur M. Becker</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: May it please the Court.</p>
<p>Before getting into my main argument on this point, I should like to answer some of the questions raised by Mr. Justice Harlan and Mr. Justice Frankfurter.</p>
<p>On the first question, Section 43 (b) and Section 46 both went up to give it as one piece of legislation in every draft.</p>
<p>Part of Section of 43 (b) had been in Section 120 of the former Judicial Code, Section which is outlined in my brief.</p>
<p>Section 120 of the former Judicial Code provided that the circuit justice and the chief justice of the Supreme Court shall be competent to sit with the court en banc.</p>
<p>It also provided that a district judge had a limited competency that he could sit with the Court of Appeals only when his presence was necessary to fill out a three-judge court.</p>
<p>But the new 43 (b) which in the earlier draft is called Section 42 went up together with 46 and they were discussed together at all times.</p>
<p>Those two sections were bracketed throughout the entire legislative history.</p>
<p>I have all the drafts and in every draft those two sections were discussed together.</p>
<p>Now, I think this -- that's the first point I should like -- I'd like to come back to that a little later, because I think, the legislative history affirmatively shows that the revisions that were made in Section 43 (b) from the former Section 120 of the Judicial Code was specifically designed to make designated and assigned justices and judges competent to sit on the court en banc.</p>
<p>So, they were put in there for that specific purpose.</p>
<p>I'll come to that in a moment or two.</p>
<p>Now, in answer --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Do you agree with Mr. Elman that if -- if Judge Medina was entitled to sit in this case that any assigned judge, whether he is in the Court of Appeals from some other circuit or the district judge or does the Court of Claims, he would be in exactly the same position?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: No, sir.</p>
<p>I --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: What differentiation do you make?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Use of differentiation I would mean.</p>
<p>I think, this Court in the Western Pacific Railroad Case held that Section 46 was a grant of power, the entire Section, to a Court of Appeals to assign judges has to distribute its work among its members.</p>
<p>The Court of Appeals is defined in Section 43 (b), in the first Section, as the active circuit judges of a circuit.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: That's right.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: I think that Section 46 said, “Those judges, the active judges of a circuit can assign and distribute the work among any judges competent to sit as members of the Court.”</p>
<p>However with respect to 46 (c), the section said, “All active judges must be members of the court en banc,” but it did not preclude the active judges of the circuit, the Court of Appeals from assigning other judges to that court as well.</p>
<p>Now, I think Judge Medina's situation is different because he was a member of the en banc court and I do not think, he could have been excluded after being a member of the en banc court.</p>
<p>But as I interpret the statute, I would see nothing wrong in a Court of Appeals to break a tie or because they anticipate a tie or because they felt it would be advisable from -- from assigning Judge Hand to the Court of Appeals.</p>
<p>I don't think they have to because the grant of power is the active judges.</p>
<p>They must assign all active judges of the circuit to that court, but I think they have the power under Section 46 to assign any competent judge but they don't have to do that.</p>
<p>That's where they have discretion.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Well, what language do you rely on in 46 (c) to things that that included?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, Your Honor, I am relying on the entire Section not on 46 (c).</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: But you said 46 (c) so --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Oh, 46 on the entire Section 46.</p>
<p>I say in 46, the entire Section deals with the Constitution of the Courts of Appeals, its divisions, and the times that shall sit and who shall be assigned to it.</p>
<p>That is what the Section says.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: Yes, but is there any other section than 46 (c) that defines the court en banc?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: No, sir.</p>
<p>But Section 43 (b) which states that designated and assigned judges shall be competent and without any qualification to sit as judges of the Court of Appeals.</p>
<p>I believe it gives the active judges of the circuit who comprise the Court the power and authority to -- to assign any judge who has been assigned to the Court to a court en banc in addition to the active members of the Court (Inaudible).</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: May I -- may I just pursue this one question so far --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Yes, sir.</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: -- that then -- then you would agree with Mr. Elman to this extent at least that if the -- if the Court, the active members of the Court wanted to do it, they could assign a visiting district judge or visiting judge of a Court of Appeals or another circuit or Court of Claims or -- to the court en banc?</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: That's right.</p>
<p>And that is precisely I'd like to point out what the Fifth Circuit in Bishop against Bishop did.</p>
<p>There have been a lot cases on this and every one of them is consistent with this theory.</p>
<p>In Bishop against Bishop, Judge Magruder who was then an active judge of the First Circuit sat -- had been designated and assigned to the Third Circuit.</p>
<p>He sat on the panel.</p>
<p>After the case was decided by the panel, the court en banc, five judges of the Court which were a quorum, as a quorum provision, and the Court consisted of seven so far with quorum.</p>
<p>The court en banc consisting of Judge Magruder and four other judges sat, denied a petition for rehearing en banc and Judge Maris who -- I don't just -- I am not singling him out, but I am mentioning him because the Government's argument is continuously on speculation of what Judge Maris would have done.</p>
<p>But Judge Maris was a member of the Court and Judge Magruder did sit with the court en banc in denying a rehearing en banc.</p>
<p>And if you recall on the Western Pacific Railroad case, this Court said the court could sit en banc to consider the petitions for rehearing en banc or could decide them informally.</p>
<p>Apparently the -- the practice in the Third Circuit is for the Court to sit in en banc and that's precisely what happened.</p>
<!-- Felix_Frankfurter--><p><b>Justice Felix Frankfurter</b>: But Mr. Elman makes the point that it's one thing for a nonactive member of the particular circuit to sit when they deny an application for sitting en banc and when they grant it can actually sit on.</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Well, Your Honor, I --</p>
<!-- Earl_Warren--><p><b>Chief Justice Earl Warren</b>: You may answer that after --</p>
<!-- Arthur_M_Becker--><p><b>Mr. Arthur M. Becker</b>: Certainly.</p>
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Thu, 29 Nov 2012 22:22:59 +000084901 at http://www.oyez.orgSwanson v. Traer - Oral Argument, Part 1/cases/1950-1959/1956/1956_149/argument-1
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Wed, 28 Nov 2012 22:43:05 +000084912 at http://www.oyez.orgSmith v. Sperling - Oral Argument, Part 1/cases/1950-1959/1956/1956_316/argument-1
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Wed, 28 Nov 2012 22:48:50 +000085068 at http://www.oyez.orgSwanson v. Traer - Oral Argument, Part 2/cases/1950-1959/1956/1956_149/argument-2
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Case:&nbsp;</div>
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Wed, 28 Nov 2012 22:43:07 +000084913 at http://www.oyez.orgSmith v. Sperling - Oral Argument, Part 2/cases/1950-1959/1956/1956_316/argument-2
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Wed, 28 Nov 2012 22:48:52 +000085069 at http://www.oyez.org